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.

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.

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?
(d)…
…

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.
(d)…
…

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.

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.’

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.

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.

The ET1 form is badly designed. One of its worst faults is that it provides separate boxes in which to write the narrative section of the different claims that may be presented. So, for example, a claimant who is complaining of unfair dismissal, race discrimination and unauthorised deduction of wages has 3 separate boxes to fill in to tell the story relating to each claim.

The trouble with this is that much of the story, told clearly and logically, is likely to be common to all the claims. The form invites either a lot of repetition, or else telling the story in a number of disjointed snippets. If several of the boxes require continuation sheets, the form can get very complicated and hard to read.

The best way to deal with this is simply to write ‘please see additional pages’ in each of the boxes that calls for a narrative, and then tell the whole story once, clearly and logically and making all the individual claims explicit, in a single document. The 3 pages of ‘additional space for notes’ on the form can be used if the story is short enough; otherwise just draft a separate word-processed document and attach that. (For the practicalities of presenting a claim in this event, see previous post.)