Tagged: drafting

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Don’t make the reader clamber over a pile of scaffolding

1.  In this skeleton argument, references to pages of the core bundle will be in square brackets, in bold print, with the prefix “core.” References to numbered pages of the supplementary bundle will be in bold square brackets with the prefix “supp.”

2.  This is an appeal from the decision of the Watford Employment Tribunal (“the ET”) to uphold a complaint of unfair dismissal by the Respondent (the Claimant below, and hereafter referred to as “the Claimant”) against the  Appellant Council (the Respondent in the ET claim, and hereafter referred to as “the Council.”)

3.  On 7 April 2012, the EAT (Baggins J) ordered that the appeal be set down for a full hearing [core/1-2].

Skeleton arguments and written submissions often begin with stuff like this: information about how the document should be read, the procedural history of the case and so on. It makes me think of scaffolding because it was functional once, but by the time the building’s finished it should all have been tidied away out of sight.

It’s true, no doubt, that the average judge starting to read a skeleton argument or set of written submissions isn’t expecting much in the way of laugh-out-loud moments, or goose-pimple thrills. But all the same: it’s safe to assume that your judge is clever, busy, and in a hurry. These sorts of introductory paragraphs are a bad use of the limited time and attention she has to spend on your case. They’re an especially bad use of the first few moments of it.

Paragraph 1 tells the judge something she can be expected to guess without difficulty. She’s been given a bundle called ‘core bundle,’ and another bundle called ‘supplementary bundle.’ If you put a reference that goes [core 48] in your skeleton, what’s she likely to think you mean? Is she going to start hunting around for apple cores, or is she going to reach for the core bundle and turn to page 48?

Paragraph 2 starts by repeating information contained in the notice of appeal. Why? Then it tells the judge how you’re going to refer to the parties. But if the claim was an unfair dismissal claim brought against a local authority, the expressions ‘the Claimant’ and ‘the Council’ are perfectly clear without explanation.

Paragraph 3 tells the judge something else she can be taken to know. You’re all there, aren’t you? So someone must have let the appeal through to a full hearing; and the order will be in the bundle.

So get on with it. Say something meaningful in your first paragraph that helps the court get a grip on what the case is all about – and, ideally, does so in a way that improves your chances of winning.

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When can an employer make a counterclaim?

A counterclaim is a case brought by a Respondent as part of their reply to a claim.

So, for example, A sues B for unfair dismissal. B replies, denying the unfair dismissal, but also suing B for breach of contract. B’s breach of contract claim is a counterclaim.

Counterclaims are rare in employment tribunals, because the tribunal has a very limited jurisdiction to deal with them. The only type of counterclaim an employer can bring is a breach of contract claim (see s3 Employment Tribunals Act 1996 and reg4 Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994).

In addition, the employer can only bring a counterclaim if the employee has already brought a claim for breach of contract under the Extension of Jurisdiction Order (reg 4(d)).

This sometimes causes confusion, because there is a difference between bringing a breach of contract claim and relying on a breach of contract as part of the factual basis of another type of claim. For example, an unfair dismissal claim that rests on constructive dismissal will inevitably involve an allegation that the employer has committed a repudiatory breach of contract. But that does not make it a breach of contract claim — it remains an unfair dismissal claim (technically a statutory tort).

Similarly, most unlawful deduction of wages claims rely on proving that the employer breached a contractual term about pay, but they are not breach of contract claims (again, they are statutory torts).

This means that, if you suspect that your employer might present a counterclaim, you should think carefully about whether to bring your own breach of contract claim. In practice, the most common breach of contract claim is a wrongful dismissal claim for notice pay. Sometimes it will be well worth bringing such a claim, despite the counterclaim risk — either because the contract claim is valuable or because the risk of counterclaim is low. But it is worth thinking about the risk — and the extent to which the contract claim adds anything significant to any other claims you are bringing.

Unfortunately, once you’ve brought a breach of contract claim, the tribunal has jurisdiction to consider a counterclaim, even if your claim is dismissed or withdrawn. So you cannot counter a counterclaim with a canny withdrawal.

It’s also important to note that employers can sue their employees in the civil courts in the normal way. So avoiding a counterclaim doesn’t mean you avoid any risk of a claim against you. A separate claim, in a different jurisdiction, however, is far more labour intensive (and expensive) than a counterclaim. Many employers will not bother.

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How claims get created

You start with a set of facts that are capable of supporting a claim. For example, you did not get a promotion, because your employer is prejudiced against women. This is less favourable treatment because of your gender, which is the basis for a direct sex discrimination claim.

The tribunal claim is created at the point that you submit an ET1 containing the allegation of discrimination. Until this happens you have not brought a claim.

The only way of creating a claim is to include it in an ET1 (although this can be done by amending the ET1 later, if the tribunal gives permission).

This is important because without a claim in existence the tribunal cannot find in your favour. They cannot decide the claim at all; there is nothing to decide.

Put like this, it sounds obvious. But it is fairly common for people to try to rely on allegations in grievance letters, inter-parties correspondence or witness statements to found a claim. This does not work; if you want the tribunal to decide something, it must be in the ET1.

This does not mean, however, that every fact you want to mention in the tribunal must be in your ET1. The basis of your claim (i.e. that your manager is a male chauvinist who didn’t promote you) must be there, but you don’t need to include every patronising remark he made over the last two years. Much of that detailed material will be brought in at the witness statement stage.

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Keep it simple

Most employment tribunal claims are about dismissal (actual or constructive); and most of the compensation awarded in most claims reflects loss of income from the job.

If before the end of your employment, you were treated badly by your employer in a large number of different respects, it can be easy to lose sight of this. You want the tribunal to know the whole story. You want to tell them about (e.g.) the unfair decision to disallow your expenses claims, the unreasonable refusal to allow you to use the accounts photocopier, the stationery cupboard incident, the time you were left out when the birthday cake was distributed, the discourtesy of the manager who conducted your grievance hearing, the unfairness of the way the grievance appeal panel was selected, the employer’s obstructiveness in agreeing a date for the grievance hearing, the unreasonable insistence on conducting the hearing at Head Office, etc etc etc.

You may feel that all of these things are examples of discrimination against you, or your employer’s bad attitude to you. You may even be right.

But most of this will make no significant difference to how much money the tribunal orders your employer to pay you at the end of the case.

So if you really think the tribunal needs to hear about it to understand the story, put it all in your witness statement. But leave it out of your claim form and your list of issues.

Why? Why should you let your employer get away with even relatively minor wrongs?

There are two reasons. The first is that if you include everything, you will obscure the important points. You’ll risk making the tribunal think you are obsessed with trivia, so that by the time you get to the heart of your case you have lost their interest and sympathy.

(The truth is, being badly treated by your employer hurts a lot. Most people who have suffered this over a period lose perspective, and get a bit obsessive about it. But the tribunal doesn’t know you. So they can’t tell at a glance whether you’ve been treated badly because you’re obsessive and annoying – or you’re obsessive and annoying because you’ve been treated badly. So if you can keep an eye on the this tendency in yourself and restrain it, you’ll improve your chances.)

The second is that including everything will increase the duration of the hearing. This will certainly mean more wear and tear for you; and if you’re paying for legal representation, it will increase the costs. So when you’re tempted to claim for umpteen individual detriments, ask yourself this question: am I likely to get enough in additional compensation for injury to feelings for these incidents to make up for the cost of the extra hearing days? If the answer is no, trim your claim.

As a rule of thumb: if you’ve got a list of issues with more than about a dozen questions on it, think very hard about whether your case really needs to be so complicated. Most don’t.

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Rights, remedies, and jurisdiction

Having a right, for example the right not to be unfairly dismissed, or to have reasonable adjustments made to your disability, is one thing. But on its own, it is not worth much.

The best way of explaining why is a worked example:

s94 of the Employment Rights Act 1996 creates the right not to be unfairly dismissed. It does this simply enough, by saying in effect ‘An employee must not be unfairly dismissed by his employer.’ This right is then explained and detailed in the rest of the ERA.

But on its own, this really doesn’t do anything. You may have a right, but what happens if it is breached? What, in other words, is your remedy?

This is set out in some of the later sections of the ERA, s112-126. These set out the basic and compensatory awards – as well as the various re-employment orders that might be made

So this far, you have both a right and a remedy. But even this isn’t enough. You need a way of getting your remedy. Otherwise your employer could say “Yes, you should not have been unfairly dismissed, and I should pay you compensation – but what are you going to do about it?”

The answer, of course, is that you are going to go to an employment tribunal. But if you are to do so, the tribunal must have jurisdiction. That is to say, it must have the legal power to deal with your claim. That’s set out in s111 ERA, which tells us ‘A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.’ Without s111, the tribunal wouldn’t be able to hear any unfair dismissal claims. And because it says that unfair dismissal claims will be heard by the employment tribunal, they cannot be dealt with by another court. If you tried to bring an unfair dismissal claim in a County Court, it would be rejected, because the County Court does not have jurisdiction.

All this is important, because there are traps for the unwary. You must not assume that, just because you have a right, you are entitled to compensation in a particular way or that you will be able to bring a claim to the tribunal.

For example, the Working Time Regulations 1998 contain a right that you will not have to work more than 48 hours a week (unless you agree in writing to opt-out) and that night workers do not have to work more than eight hours at a time. But there is no entitlement to compensation if these rights are breached and you cannot bring a claim to the employment tribunal about them. They are enforced by the Health and Safety Executive, and various other Government agencies.

For each claim you bring to the tribunal you must have some idea of what compensation can be awarded, and where the tribunal’s jurisdiction comes from. Otherwise you may be caught out: at best, you’ll have have wasted your time, and at worst you may have missed the chance to bring your claim in the correct forum, or risk an order that you pay the other side’s costs.

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Guest post: Anne Redston


Completing your ET1

The ET1 is the form you complete when you begin your claim. It sets out the reasons you are complaining to the Tribunal. So in an unfair dismissal case, you must explain why you think your dismissal was unfair; in a discrimination claim, you must explain the incidents you believe amount to discrimination.

This seems straightforward enough. But there are two common mistakes. The first is to give too much detail, in an unstructured form, so that key facts get buried. This makes it difficult for the Tribunal to work out exactly what you say happened. In contrast the employer normally submits a carefully structured ET3, with legal help, which concentrates on the facts the employer thinks are important and presents them in the way most helpful to its case.

The Tribunal judges normally read the ET1 and ET3 just before they begin the case, but not very long before. In the short time available, they may be drawn to the employer’s comprehensible, coherent and legally persuasive account rather than your rambling 20 page ET1. And this is means you start the case on the back foot, having to convince the Tribunal that you have a good case.

The second risk is that you miss out important facts because you don’t realise that the Tribunal will want to know them. If you try and raise these facts later, the employer’s representative may suggest that you made them up, in order to strengthen your claim.

So, unless the issue is very straightforward – such as being racially abused by your boss – it is worth getting some legal help at this early stage if you can. There are various sources of free advice (see Getting Advice); or if you can afford it, you might want to pay an employment lawyer for a few hours’ work.

Anne is a visiting professor in law at King’s College, London, and a volunteer at FRU

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Asking questions

If you serve a questionnaire on the respondent, or ask them for further details of their response to your claim, send your questions by email if you possibly can. That way, you will make it easier for them to answer your questions in a document that incorporates both questions and answers.

Suppose your questionnaire goes:

6. Please answer the following questions:
(a) Do you accept that I am a disabled person?
(b) Do you agree that I have asked you on numerous occasions to consider adjusting my working hours so that I do not have to travel at busy times?
(c) Do you agree that the nature of my work is such that it is rarely time-critical over short periods?

If you have just sent a hard copy, their response may well simply go:

(a) No.
(b) Yes.
(c) Not entirely. It is often necessary to have your input on queries that are raised by sales staff within an hour or two.

This will be extraordinarily annoying to use, because anyone reading it will have to keep flicking back to the questions to find out what the answers mean. It is much better for everyone if questions and answers are interleaved, thus:

(a) Do you accept that I am a disabled person?
Answer: No.
(b) Do you agree that I have asked you on numerous occasions to consider adjusting my working hours so that I do not have to travel at busy times?
Answer: Yes.
(c) Do you agree that the nature of my work is such that it is rarely time-critical over short periods?
Answer: Not entirely. It is often necessary to have your input on queries that are raised by sales staff within an hour or two.

If you email your questions, it is more likely that your respondent will do the sensible thing in replying – because you’ll have saved them the trouble of re-typing all your questions.

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Drafting your claim

Your claim form will be one of the first things that the tribunal reads, so it is an important document. If the story you tell there is not complete, easy to follow, and convincing, you will start at a serious disadvantage. The main narrative part of the claim form that you fill in is box 5.1 for an unfair dismissal, box 6.2 for discrimination.

It is probably clearest if you divide the content of this into two main sections. Tell the story in the first part; pin on the legal labels in the second part.

1. Tell the story

Structure is important. It is much harder to follow (and therefore also to believe) a story that jumps around in time and where the reasons why things happened are not clear. Just write down the things that happened that form the basis of your claim, in the order in which they happened (that is to say, in ‘chronological’ order), and in numbered paragraphs.

You don’t need to go into huge detail here. The point of this document is to tell the tribunal what you say happened that gives you a right to compensation or some other remedy. You don’t have to tell them all about why they should believe your version of what happened: you will have a chance to do that later in your witness statement. Just tell them what happened. But you do need to tell them everything that you want to be compensated for: so don’t leave out anything that your employer did that you think was an act of discrimination, or a breach of contract, or in an unfair dismissal case, everything that was wrong with the way they went about making the decision to dismiss you.

At this stage, you don’t need to talk about the law at all. Don’t say ‘this was sex discrimination because… ‘ or ‘this was unfair because…’ – just write down the facts, in order.

Make sure the story doesn’t have any puzzling gaps in it. That is hard to do with a story that your own head is full of, so if possible, get someone else to read it and ask them if they understand what you say happened, and whether it leaves them wanting to ask ‘But why…?’ at any point.

2. Pin on the labels

Once you have finished telling the story, say what you want the tribunal to make of it. This is the moment to spell out what your claims are, in legal terms. It isn’t the place for legal argument – you don’t have to quote cases or recite bits of legislation – but you do need to explain whether you say the things that the respondent did amount to sex discrimination, or race discrimination, or disability discrimination, or unfair dismissal, or a breach of contract (and so on).

If you say you have suffered discrimination, you will almost certainly have to explain a bit more: you will need to say whether you think you have suffered direct discrimination (they treated you worse because of your sex, race etc.) or indirect discrimination (they applied a provision, criterion or practice to you that put you at a disadvantage compared to members of other groups, and they can’t justify it), or discrimination by way of victimisation (they treated you badly because you had raised other complaints of discrimination previously) – and so on.

This part can get quite complicated. Often you won’t know for sure which is the best way to put your claim. You may have to draft alternative claims – this was direct discrimination on grounds of sex, but if it wasn’t, it was indirect discrimination on grounds of sex; then again it may have been victimisation. But when you come to write this part, your task will be easier if you have set out the story clearly in numbered paragraphs first, because you will be able to refer back to those paragraphs and say things like ‘In doing the acts referred to at paragraphs x to y above, the Respondent treated the Claimant (or if you prefer ‘my employer treated me’) less favourably than it would have treated a man in the same circumstances.’

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Do not use a technical word unless you mean it technically

Where a term has a specific legal meaning in the employment context avoid using it outside that context.

For example, anybody who has been bullied at work can sensibly say he has been harassed. The Oxford English Dictionary defines harassment as ‘to subject (an individual or group) to unwarranted (and now esp. unlawful) physical or psychological intimidation, usually persistently over a period; to persecute. Also more generally: to beleaguer, pester.’ This is a good description of bullying

But employment lawyers will associate harassment with discrimination cases, where harassment is a specific sort of claim. To use it in the more general sense risks confusion.

Similarly, be careful with the words ‘victimisation’, ‘discrimination’, ‘whistle-blowing’ and even ‘unfair’. If you are not using the technical meaning, it is better to choose a more neutral word. ‘Bullying’ is often useful, as is ‘intimidating’ or ‘threatening’.

On the other hand, if you are talking about a specific concept it is sensible to use the specific word. A women who has been bullied because of her gender has been sexually harassed. If you only say that she has been bullied it may not be immediately clear what sort of claim you are making.

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Exchanging witness statements in a hurry

In an ideal world, witness statements would be ready days, if not weeks, before they had to be exchanged. There would even be lots of time for tweaking, polishing and general fiddling with them, to make sure they were absolutely perfect.

In the real world, witness statements often have to be prepared quickly.

Even when you are in a rush it is important to make sure that the statement is complete and accurate. In particular, advisors must always make sure that their client has read and agreed the statement before it is exchanged.

If you are really rushed there are ways of cutting corners, without causing problems.

Exchange unsigned statements

It is often easier to get confirmation that a statement is okay than it is to get a signed copy from the client. There is nothing wrong with exchanging unsigned statements. It is simply a myth that statements must be signed before they are exchanged.

Leave page numbers blank

Sometimes you will need to exchange statements before the agreed bundle has been finalised. If this happens it is normally sensible to leave space to insert page numbers later. This allows you to exchange on time, but still provide the tribunal with a copy with cross-references to the bundle of documents.