Tagged: evidence

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Preserving Online Mitigation Evidence

Nowadays a lot of people search for jobs online. If you are doing this, you will need to make sure you can produce copies of the adverts and your application for the tribunal to show that you have made reasonable efforts to get another job (and thereby mitigate your loss).

Online adverts and applications can complicate this process, because it can seem as if you have a record when you don’t. For example, an email with a link to the advert on a website may seem to be a good record. But, six months later, when you’re preparing a mitigation bundle you may well find that the website has changed and there is no trace of the job or its details.

To be safe, make sure you have a full record of the advert yourself. The easiest and simplest way of doing this is to print it out there and then. Or to save it as a pdf.

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When giving evidence…

… point your feet at the employment judge.

Witnesses are constantly reminded to address their answers to the tribunal. When you’re being questioned by your employer’s representative, or your own, the natural thing is to give your answers to the person who has asked the questions. But it’s essential that the tribunal hears your evidence – and they are probably sitting further away from you than the respondent’s representative. So if you address your answers to them, everyone should be able to hear.

The trouble is, it feels odd – and actually quite rude – to turn away from the questioner and give your answer to someone else, and witnesses constantly forget to do so. Sometimes they forget so often that the tribunal gets a bit sharp with them, which adds to the stress of an already stressful situation.

This is where your feet come in. If you keep your feet pointed at the employment judge, you’ll have to twist slightly to look at the representatives, and the natural tendency to untwist as soon as possible will help you keep your answers directed to the panel.

(This isn’t original – I can’t remember where I heard it first, but it’s a good tip.)

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Follow up on Witness Statements

A few months back, Naomi wrote about Mehta v Child Support Agency, where President Underhill suggested that it was not always necessary for witnesses to read their statements aloud.

As Naomi suggested at the time, the case does seem to have caused a shift in tribunal practice. Although not the invariable rule, it has become much more common for statements to be read by the tribunal over a break in proceedings and, therefore, for cross-examination to begin almost immediately after a witness is sworn in.

This is worth noting for three reasons. First, tribunals are stressful, and it’s easy to be thrown if things don’t proceed quite as you expect.

Second, if you want a witness to read part or all of their statement, you need to be ready to explain why it’s necessary.

Third, if you’re used to cross-examining witnesses after they’ve read their statements aloud, you may have become reliant on the time that takes to catch your breath, shuffle your notes, remember who this witness is and where the fit into the story, re-read some of the documents they refer to, take a short nap, and so on. Not having witnesses read their statements aloud means everything moves along at a brisker pace, and you’ll have to cross-examine one witness straight after another .

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New evidence after tribunal

Sometimes, after the tribunal hearing, you learn of something that, if you’d know about it at the time, you would have wanted to present to the tribunal. The fresh evidence might be a document, an expert’s report or a new witness.

If you won without the evidence, this won’t matter. But if you lost all or part of your case, you are likely to want to do something to change the judgment.

To use new evidence to challenge a tribunal decision, you will need to show that it satisfies the test set out in Ladd v Marshall. This is that:

  1. The new evidence could not have been obtained with reasonable diligence for use at the original hearing,
  2. The new evidence would probably have an important influence on the result of the case, and
  3. The new evidence must be apparently credible, though it need not be incontrovertible.

This is not an easy test to meet. The tribunal system is, for obvious and sensible reasons, reluctant to reopen cases that it has already dealt with. Many applications fail, either because the tribunal believes that if reasonable steps had been taken the evidence would have been available, or they simply do not think it is significant enough to justify reconsidering the case.

But if you decide that the new evidence does pass the test, what are the mechanics of getting it considered – do you appeal, or ask for a review?

In the recent case of Adegbuji v Meteor Parking Ltd, the Employment Appeal Tribunal has said that the appropriate course is to apply for review, and that the EAT may not have the jurisdiction to deal with new evidence appeals.

These are two slightly different points. The President of the EAT, Underhill J, says review is more sensible than appeal, because the tribunal is best placed to decide how significant new evidence is and whether it is credible. So parties should apply for a review, and any appeal based on the same point, will normally be stayed until the review is completed.

This reasoning is hard to argue with, and since the President is in charge of the EAT, his approach is likely to be followed. In general, therefore, new evidence challenges should be made by review, rather than appeal.

There is probably no advantage, in these circumstances in applying for both a review and an appeal. In theory, this might give you two attempts at the issue, once on review, and then again on appeal if the review is rejected. But in practice, the EAT is unlikely hear an appeal when the same issues have already been dealt with on review. They would only do so if the tribunal had made an error of law during the review – but in that case the review decision itself can be appealed, so you can safely wait until you have that decision before deciding whether or not to appeal.

But there could be circumstances in which you’d want to appeal instead. For example, if you are appealing on a number of other grounds as well, it may seem more sensible to appeal, and have the whole case dealt with by the EAT – rather than applying for an appeal and a review. Generally I suspect that this approach is unlikely to find favour with the EAT, but it might work in the right case.

But the second point is that the President suggests that the EAT may not be able to deal with new evidence cases at all. The EAT’s powers to deal with appeals is set out at s21 of the Employment Tribunals Act 1996. This says that ‘An appeal lies to the Appeal Tribunal on any question of law arising from any decision of … an employment tribunal’. In Adegbuji, the President expresses doubt that new evidence can amount to a ‘question of law.’ If he’s right, then the EAT cannot deal with such points at all.

Adegbuji does not resolve this point, so at the moment there is no binding authority to prevent you arguing that ‘a question of law’ can cover an appeal on the basis of new evidence and the EAT has jurisdiction. There are a few problems with this: how can new evidence have anything to do with questions of law and how can the tribunal err in law, if it has decided the case correctly on the information available to it? Nonetheless, the issue is not clear cut and arguments could certainly be made the other way.

The key point is that it would be most unwise to rely solely on an appeal. If the EAT lacks jurisdiction, your appeal would be dismissed. By the time that this had happened the time-limit for review would have long passed. While new evidence is often a good reason for extending time – after all, if the evidence is genuinely new, how could you have applied earlier? – this justification falls away once you have the evidence. If you could apply to appeal, the tribunal may say, why could you not apply for a review?

The safest thing to do, therefore, is to apply for a review and an appeal, but ask for the review to be stayed pending the outcome of the appeal. Do not be surprised, however, if the tribunal and EAT prefer for the review to be dealt with first, regardless of your wishes.

Adegbuji v Meteor Parking Ltd

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Should you ask for an interpreter?

The Employment Tribunal Service will provide an interpreter if you or one of your witnesses doesn’t speak good enough English to give your evidence without one. The best time to ask for an interpreter is at the case management discussion, though a later request will probably also be met.

If you can’t speak English at all, or your English is very poor, you don’t have a decision to make: you need an interpreter.

But if your English is good enough for most practical purposes, but not completely fluent, you need to decide whether or not you are comfortable giving your evidence in English. Not having an interpreter when you need one can be damaging, but using an interpreter has some quite serious disadvantages too, so you’ll need to weigh up the pros and cons.

Benefits of using an interpreter

There’s really only one benefit: if you use an interpreter, you will have a better chance of understanding exactly what it is you have been asked, and making yourself clearly understood in reply. The worse your English, the more significant this benefit is.

Disadvantages

There are quite a lot of disadvantages.

  • Interpreting is difficult, and the skill of interpreters varies. If your English isn’t too bad, and your interpreter isn’t very good, interpretation may introduce more confusion than it clears up.
  • If in fact you understand English pretty well, the tribunal is likely to notice that you have understood questions before they are translated to you. This may make them annoyed with you, or suspicious of you, in various ways. They may be annoyed that you have put the Employment Tribunal Service to the expense of providing an interpreter you didn’t really need. They may be annoyed by the fact that everything is taking longer than it should. They may suspect that your reason for using an interpreter is to play for time – so you have twice as long to decide what to say in response to each question. They may think that means you want to tell them lies.
  • Using an interpreter places a barrier between you and the tribunal. Instead of looking the tribunal members in the eye and speaking direct to them, you are speaking to another person, who is relaying your answers. It’s less immediate, and likely to be less convincing.
  • It takes longer. If you’re paying for your representation, that’s particularly bad news – but unless you’re very odd indeed you won’t enjoy being cross-examined, so it’s fairly bad news anyway.
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    Navigating the bundle

    When you want to draw the attention of a witness – and everyone else – to a particular line in a document in the bundle, be clear about what you’re asking them to look at. So if you’re looking at an email string, you may want to say something like ‘the third email from the top of the page, sent by Dot Walsh at 5.34 pm.’ Or if you’re looking at minutes of a meeting, you may want to say ‘3 lines from the bottom of the page,’ or ‘5 lines down in the 2nd paragraph.’ The holes punched in the pages are sometimes useful as landmarks, as in ‘about level with the lower punch hole.’

    It’s a small detail, but in a long hearing the time wasted will add up quite a bit if the tribunal has to keep stopping you and asking where you mean.

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    Video or audio evidence

    Occasionally one party or the other wants to play CCTV footage or audio recordings to the tribunal. I have two suggestions on this:

    1. Don’t

    Or don’t if you can help it, anyway. If you have a recording of a conversation, it will normally be more convenient for the tribunal if you can agree a transcript of any relevant parts with the other side. If the recording is clear, the other side will probably agree with you who said what, and confine themselves to arguing about what it meant or whether it mattered. If the recording is unclear, the tribunal is likely to be bored and irritated if they’re made to listen to it, and it won’t help. Similarly with CCTV or video footage: if possible, just agree with the other side what it shows so that you can tell the tribunal without making them watch it.

    1. If you do, make it as painless as possible

    If you can’t get the other side to agree a transcript or a description of the material and you think it is important that the tribunal sees or hears it, there are various things you can do to minimise the inconvenience:

  • Keep your extracts to the minimum – don’t ask the tribunal to watch or listen to any more material than you need to make your point.
  • Use the right equipment. If you want to show video footage, don’t expect the tribunal members to huddle round a laptop: you will need to get hold of a large screen or a projector. If you want them to listen to audio material, make sure you are able to amplify it sufficiently for everyone in the room to be able to hear it.
  • Don’t expect the tribunal to provide the necessary equipment – they won’t.
  • Make arrangements in advance. Phone the clerk to let them know what equipment you’re bringing, and ask if you can get into the hearing room early to set it up and make sure it all works.
  • Practise beforehand. Make sure you are familiar with the equipment (including setting it up and plugging the wires into the right sockets), and know how to find the extracts you need with minimum delay and fuss.
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    Hearsay

    ‘Hearsay’ is a technical term. It’s one of those things that tribunals sometimes assume everyone understands, when in fact few non-lawyers do.

    It’s not very difficult, though.

    All hearsay evidence is evidence a witness gives about what someone else said. But evidence isn’t hearsay just because it’s evidence about what someone said. It’s only hearsay if the point of giving it is not to persuade the tribunal that someone else said something, but to persuade them that what someone else said was true. So you can run a simple test on any piece of evidence about what someone said: ‘Does the witness want the tribunal to believe that what was said was true?’ If the answer is yes, it’s hearsay; otherwise not.

    Examples

    Suppose you tell the tribunal that Alison told you before your disciplinary hearing that she’d already been asked to draft an advert for your job. Why are you telling them this? Because you want them to accept that Alison had been asked to draft an advert for your job before the decision had officially been made to dismiss you. But the best person to tell them about that is Alison, not you. Your evidence is hearsay.

    Now suppose you tell the tribunal that your manager said you were a useless wanker. This time you’re not trying to persuade them that what your manager said was true – you’re not giving this as evidence that you are a useless wanker. You’re just trying to persuade them that your manager insulted you. So although your evidence is about what you heard someone say, it’s not hearsay. (Of course, if you tell the tribunal that Alison told you that your manager told her that you were a useless wanker, that is hearsay.)

    Why does it matter?

    It doesn’t much, actually. Employment tribunals can hear whatever evidence they please, and there are no technical rules about hearsay, though they will probably place less reliance on hearsay than on direct evidence. But it’s a term you may hear, so it’s as well to understand what’s being talked about if you do.

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    Searchable statements

    In a complicated case, it’s worth saving all the statements on your side (and the other side too, if you have them in a suitable format) as a single continuous document. That way, if you know someone has said something about a particular subject, but you can’t remember who said it, or exactly where in their statement, you have a single document that you can search electronically (ctrl+F on a PC). This is useful while you’re preparing the case – and at the hearing too, if you have a laptop with you.