Tagged: chronology

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Chronologies

In a case where there story is at all factually complicated – and quite likely, even if it isn’t – the tribunal will want a chronology. That means a list of the most important things that happened, with dates, in the order in which they happened. A simple chronology may just be a list of dates and events. Often the order in which things happened is extremely important to what inferences the tribunal will draw. Take a chronology that goes like this:

4/1/13 C started work

21/7/13 C announces pregnancy

22/7/13 C’s line-manager emails her a list of complaints about her latest assignment

28/7/13 C dismissed because ‘your work’s not good enough’

It’s pretty clear what’s happened there.

But change the order so that the email complaining about C’s work is on 21/7/13 and she announces her pregnancy the following day, and everything looks completely different. It might even be suggested (especially if she’s made the announcement very early in her pregnancy) that she has made the announcement when she has in order to make deter her employer from dismissing her.

It’s not usually as clear-cut as that, but often in the course of drafting a chronology you find that you notice some sequence of events that doesn’t quite fit with what one party or the other is saying.

I have 4 specific pieces of advice about chronologies, apart from the general observation that they are useful – both as a way of getting the sequence of events clear in your own head, and as a way of making your story clear to the tribunal.

1. Use a spreadsheet

Using a spreadsheet makes life easier because it doesn’t matter what order you put the events in – you can sort it into date order automatically periodically as you go through. That saves a lot of fiddly insertion of extra lines in a table.

2. Include page numbers

Part of the reason that chronologies are so useful is that bundles often aren’t properly in chronological order; mostly by accident, but sometimes even by design. If you have a bundle that isn’t in chronological order, it can be difficult to find any particular document, even if you know its date or approximate date, unless you know its exact page number. So for each event in your chronology that is closely associated with a document (e.g. the disciplinary hearing and the notes of the disciplinary hearing) or even is a document (e.g. the dismissal letter), include the page reference.

3. Use a spreadsheet intelligently

The facts will often have a number of separate strands: a formal disciplinary or capability process; various OH reports and consultations with the Claimant’s GP or specialist; a grievance process. Your chronology may be clearer if you separate out these strands into different columns, so for example you might have a ‘formal process’ column for disciplinary/capability hearings, invitations to hearings etc; a ‘sickness absence’ column for periods of sick leave; a ‘medical/OH’ column for OH referalls and reports and similar material; and so on.

4. Include blank lines

When you come to finalise and print your chronology so as to give it to the tribunal, you might want to add a blank line under each event so that if the ET members think there are other significant events that your chronology doesn’t record, they have space to add them.

See Workbook1 for an example of how the beginning of a chronology done this way might look.

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Chronologies: Inside or outside?

A lot of people put chronologies inside other documents, most commonly written submissions. This is not a terrible sin, but it’s normally better to keep them as a separate document.

There are three main reasons for this. First, chronologies tend to be long – at least a page and often more. So they bulk out a written submission and interrupt its flow. This does not help the submission do its job, which is to persuade the tribunal.

Second, a chronology will often be used widely during a case, not just when looking at written submissions. For example, it can be a useful tool when cross-examining or help the tribunal make sense of a confusing sequence of events in a witness evidence. There are many cases where a good chronology will be used throughout the hearing. This is slightly easier if it is a separate document, and it means you don’t have to complete your written submissions before the case starts.

Third, ideally a chronology should be agreed. A lot of parties and representatives will be reluctant to agree to part of your written submissions, even if the substance isn’t controversial.

This does not mean, of course, that a written submission should never contain a chronology. In particular, a short, focused chronology within the submission can often be helpful when you are making a comment about the sequence of events or their timing. Say, for example, you want the tribunal to draw inferences from the fact the Respondent’s written warnings always occurred a few days after the Claimant made protected disclosures. Setting out, in a tabular chronology within your submissions, all the protected disclosures and all the written warnings can effectively make that point, in a way that can’t easily be replicated in prose.

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Timing is everything

The timing of events is important circumstantial evidence in the employment tribunal. One of the reasons that preparing a chronology is so useful is that it helps you find patterns that support your case.

The classic example of this is a dismissal, where an employee has been dismissed 48 hours after announcing her pregnancy. The tribunal is likely to take some convincing that this is a coincidence. Similarly, if someone makes a protected disclosure and dismissed immediately afterwards. the tribunal will be sceptical of claims that there were long-standing capability problems.

In such cases, you will want to emphasis the timeline of events. Your cross-examination and submissions should draw the tribunal’s attention to the pattern, while undermining the respondent’s attempts to present other explanations.

But this sort of evidence is circumstantial and not definitive. It is a mistake to think that just because one event happened shortly after another, the first event must have caused the second.

If, say, the pregnant employee is dismissed along with 50 of her co-workers and the employer produces compelling evidence of a redundancy situation, much of the probative value of the timing disappears (although you would probably want to look carefully at why she was selected for redundancy).

For math / philosophy geeks, the principle is illustrated below:

Correllation

Comic by xkcd

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Documents drafted by the other side

Quite often, the tribunal will instruct the parties to produce an agreed document – a chronology or a list of issues are the most common. This means that one party will come up with a first draft for the other to comment on, and then there will be a certain amount of to-and-fro until they have an agreed draft.

There two main points about this process:

1. If you do the first draft, make it genuinely neutral. Don’t try to slip in your own spin or slant: this is not the moment to try to pull a fast one or score a tactical advantage, and the attempt will just waste time and cause unnecessary friction.

2. When commenting on a draft produced the other side, don’t make unnecessary changes. So if your normal habit is to write dates in the form ‘7 Jan 09’ and the draft you are offered uses ‘7/1/09,’ leave it be. Don’t make any change that increases the length of the document unless it also makes it clearer or adds necessary extra content.

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Chronologies

A chronology (see Writing a chronology) is useful in two ways: the document itself is useful, because it provides an at-a-glance summary of the key dates and events. And the process of writing it is even more useful, because it helps fix the key dates and events in your mind.

What it is not for, however, is putting your case. The tribunal will want a chronology agreed by both sides, and will expect it to be drafted in neutral terms. If you put disputed material in your chronology, you can’t expect the other side to agree it.

If you need to put disputed allegations in to make sense of the story, put them in in a way that makes it clear that they are disputed – eg:

25.9.08 alleged racial abuse by P

Sometimes when you’ve drafted a complete chronology, you’ll find that it goes on for pages and is not much more digestible than the several lever-arch files of documents you’ve taken it from. Don’t throw it away – you’ll definitely need it – but you might want to create another version on a single page that just lists the 10 or 15 most important dates. If you can find the time, committing the short version to memory before the hearing begins is very worthwhile.

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Writing a chronology

A chronology is just a list of key dates. Writing a chronology will often be the first thing you need to do to start to come to grips with a case. It is much more use to you if you have drafted it yourself: a great deal of the value of the exercise is in the doing of it, rather than in the finished product (although the finished product is useful too). This is because the task makes you think systematically about the story. What happened first? Then what happened? What happened after that? Did this bit of the story come before or after the other bit? By the time you have written down the key events in the story, you will have understood a great deal more about it than you did when you started.

For this reason, any kind offer your opponent may make to draft a neutral chronology and give it to you and the tribunal should be treated much as your mother taught you to treat kind offers of sweets from strangers.

There is nothing difficult about drafting a chronology, but there are a few good habits to cultivate:

Start by sorting the papers you have in chronological order

This makes the task much easier. Then your method is just to go through the documents one by one writing down any relevant date that you see.

Use 3 columns: date, event, page number

Date and event are obvious, but if you already have a paginated bundle by the time you do this task, it will save you a lot of time later on if every time there is a document clearly associated with a particular event, you note its page number in the right hand column. So for instance if ‘dismissal’ is one of the dates on your chronology, the obvious associated document is the letter of dismissal.

Use a table or a spreadsheet

This is helpful, because it means that you can write down dates in any old order, and then sort them at the end (or from time to time as you go along, if you find that helpful).

Approximate dates

Lots of dates you will know exactly and be able to put in your table in a form (e.g. 12/11/97) that your word-processing or spreadsheet program will recognise as such and be able to cope with. Sometimes you will just know that a particular event happened ‘during the week beginning 12 November 2007’ or ‘in November 2007.’ If there are relevant dates further back in the history, they may be even vaguer: ‘early in 2003’ or ‘in about 1990.’ Dates of this kind are harder to put in a chronology that you are going to want to sort automatically.

There are various ways of dealing with this. One method that works is to adopt a convention. Give the event an exact date which is the earliest date it could be; but mark it as an approximate date by putting an asterisk in front of the note of the event. So for example if you know that the claimant asked for a pay rise at some point during the week beginning 12 November 2007, you could write in your chronology:

12/11/07 *C asked for pay rise

If you know that your client was promoted at some point in 2003, you could write:

1/1/03 *C promoted.

Then you will be able to sort your chronology automatically, but the asterisk will remind you that this is not an exact date. If you finalise the chronology to give to the tribunal, you can sort it for the last time, and then remove the asterisks and write in the dates column just ‘week beg. 12/11/07’ or ‘2003’ or ‘November 2007’ as appropriate.

This is effective, if not elegant: if anyone reading this post knows a better method, please comment.

Start your cross-examination notes at the same time

Keep an eye open from the start for documents you might want to cross-examine the respondent’s witnesses on. It makes sense to have a separate document open on your computer (or a separate pad of paper) that is the beginnings of your cross-examination notes. Don’t worry for the moment about structure or order. Just highlight the relevant part of the document with a yellow highlighter, stick a post-it on the page, and make a brief note of the point or question together with the page number (if any). If you don’t yet have a paginated bundle and the papers are voluminous, you can save yourself some time later by numbering each post-it as you go along, and sticking each one on half an inch lower down the page than its predecessor. That way, whatever order your pages end up in, your numbered post-its will run from top to bottom. Start again at the top if you run out of space.