If you are representing a client (or yourself) in the employment tribunal – or any other court or tribunal, come to that – your job is to put your case to the best of your ability. The judge’s job is to decide on the outcome: that’s what they’re paid for.
Judges don’t always remember this. Sometimes you will come under considerable pressure to concede part of your case, or to agree that a view the judge expresses on the law at the beginning of the hearing is correct. Judges are supposed to be experts on the law, and lots are: but some aren’t, and even the best are wrong sometimes. So if the judge tries to get you to agree that he or she is right about some legal proposition that you’re worried about because it seems to make it harder for you to win, don’t assume you have to back down. You don’t: you are entitled to argue in favour of your case even if the judge thinks you are wrong.
There’s a tension, of course, between wanting to seem reasonable and stay on the judge’s good side, and wanting to pursue even those parts of your case that the judge has initial doubts about. You have to make a judgement about that: sometimes making some concessions is undoubtedly the right thing to do: see this previous post. But if the judge doesn’t seem to have a good side – or seems to have taken against you on sight – and you are convinced at an early stage that you are going to lose whatever you do, then you might as well stand your ground.
In particular, if you concede instead of making the judge do his or her job and make the decision, it will be more difficult to appeal even if the judge was wrong all along.
If you’re suing your employer in the employment tribunal, it’s sensible to observe one or two hearings first, so that you have some idea what to expect when the date for your hearing arrives.
This can be a moderately intimidating thing in itself. Most tribunal hearings are public: you’re entitled to wander in at any time during the hearing day, stay for as long as you like, and leave again when it suits you. But they don’t necessarily feel terribly public. They’re certainly not public like a railway station is public. When you arrive, you may well have your bag searched and have a metal detector passed over you. You’ll be expected to sign in at reception, and a clerk may approach you to find out who you are and what case you’re there for. Tribunal staff may give you the feeling that letting you observe a hearing is a bit of a favour.
It’s not: it’s your right. You’re entitled to be there just as a member of the public; you don’t need any special reason to be there, and you don’t need to tell anyone what your reason is if you don’t feel like it. You may be a law student. You may be a psychology student conducting some kind of observational research. You may be a party or a witness in a future case. You may be a tourist with an eccentric taste in sight-seeing. You may the the proud grannie of counsel for the respondent. You may just want to get in out of the wet. It’s no-one’s business but yours which of these categories you fall into.
If you’re there to observe a case so you know what to expect in yours, don’t feel that you’re committed to any particular case once you’re there. You can sample a few, and stay longer once you’ve found one that seems vaguely like yours. Enter and leave quietly. If you’re asked who you are, there should be no need to give any explanation beyond the fact that you’re there as an observer.
If you know that your employer is legally represented it’s probably a good idea to try and see part of a case where a lawyer is cross-examining a claimant. If you find yourself listening to learned argument between lawyers about whether or not the Part Time Workers Regulations properly implement the Directive, and your case is just unfair dismissal, it’s probably not worth staying to listen.
Some hearings are private: it should be clearly marked on the door of the hearing room if that’s the case – but if not, and you wander into a private hearing by accident, it’s not a disaster. You’ll just be asked to leave.
Apparently people are doing this (particularly telephone CMDs). You really must not. It’s illegal.
s9 of the Contempt of Court Act 1981 make recording court proceedings — which includes tribunal hearings — contempt of court, which is a criminal office. Worse case scenario, you can be jailed for up to 2 years or fined up to £2,500.
At a recent Employment Tribunal National User Group the President of the Employment Tribunals indicated that he takes this extremely seriously. People have been reported to the CPS.
I suspect that this is the sort of thing that, quite often, happens innocently. I can see why someone unfamiliar with s9 would think ‘It would be handy to have an accurate record of the tribunal’s orders from the CMD and I’ve got a dictaphone here, so…’
Similarly, you might think you should be permitted to record tribunal hearings. The rule is a policy question that people can disagree about.
But the current law is that recording is forbidden. It is contempt. And this is something that courts simply have no sense of humour about. So just don’t.
It is possible to ask permission to record a court hearing. So, if for some reason you want to, it might be worth asking. I suspect the reaction will depend on what you want to record and why. It might, in the right circumstances, be a reasonable adjustment.
Solicitors who compile hearing bundles sometimes put in a tabbed divider card for every single document. That’s a pain: it adds a lot of bulk to the bundle and obscures the post-it notes you want to add to mark the most important documents.
But it’s true that it can be helpful to be able to flick quickly to the next document. The other week, dealing with a fat bundle, I got bored of repeatedly turning through the pages of a management statement of case – complete with multiple appendices – in order to get to the next document in the chronological sequence. So I used a heavy-duty hole punch to make a notch in the top right hand corner off all the pages of the statement of case and its appendices. That made it easy to skip to the end of the statement of case.
Not rocket science – just a little thing that can make life slightly easier in a paper-heavy case.
When you’re taking notes in a hearing you don’t need to attempt a verbatim record. Unless you know shorthand or you’re a fast typist you won’t be able to anyway.
So, you can write ‘Did not speak to S.’ when the witness said ‘No. I don’t think I spoke to Susan about what had happened. No. Thinking about it, I’m sure I didn’t, because next week when we met at the away-day she mentioned that she hadn’t seen me in ages.’
Sometimes, however, you will want to capture exactly what a witness has said. In particular, sometimes a witness will say something so valuable to your case, or damaging to his credibility, that you want to be able to quote it back to him later or to the tribunal in submissions.
When this happens, in addition to recording the witness accurately and fully, you need to make sure you can identify the note as a direct quote later.
Personally, I do this by putting the direct quote in quote marks. But anything that suits you will work.
A paper-heavy case – where the hearing bundle runs to several volumes and there are a dozen witnesses or more – presents various specific difficulties. The main one of course is that there is a lot of material to get your head round. There’s no quick fix for that: preparation will take a long time.
This post just offers a handful of very small ways to make life easier.
1. Label the inside cover of each volume of your bundle with the volume number and the page range. That way, you’ll be able to identify the different volumes of your bundle at a glance when they’re open on the desk in front of you.
2. Print your own copy of the bundle double-sided. It’ll weigh half as much and take up half as much space. There will be some minor inconvenience (e.g. where you need to insert additional pages after the bundle is printed), but the reduction in general hassle is worth it. If you want to reduce your bundle to quarter size and you have good eyesight, print it double-sided on A5 paper.
3. Write the name or initials of the witness at the top of each page of the witness statement. (If it’s your statement, include it in the ‘header zone’ of the document; if it’s the other side’s, and they haven’t done that, just write it on each page.)
4. Print claimant and respondent witness statements on different coloured paper, so you can tell at a glance which is which.
Some employment disputes just are about really bad behaviour. If you’ve suffered sexual harassment, or racist or homophobic abuse, for example, there’s no pleasant way of saying it. The chances are your employer will deny it, and you’ll end up in the sort of hearing where feelings run high, and serious and discreditable allegations – including allegations of lying to the tribunal – are made on both sides.
But lots of disputes are altogether less personal. Suppose your employer has closed down your workplace and offered you alternative work 30 minutes further from your home. You’ve refused the alternative work, and claimed redundancy. They have said you’re not entitled to redundancy pay, because you’ve refused an offer of suitable alternative employment.
If you’re right, you get your redundancy pay; if your employer’s right you don’t. Obviously you’d like to have the money, and they’d prefer not to give it to you. Obviously you’ll both do your best to win the dispute. But no-one’s really behaving badly here, are they? It’s just both sides legitimately seeking to further their own interests.
A dispute like this ought to be able to be conducted from start to finish in a calm and polite manner, without either side causing the other any particular offence.
If most of your dispute is of this nature, but one aspect of it involves allegations of really bad behaviour, do think carefully about whether you really need to run the ‘nasty’ part. It will raise the temperature of proceedings a great deal, and make the whole case harder and more stressful to fight – and much harder to settle. So run it if you think it has a strong prospect of success and it is going to make a significant difference to how much compensation you can claim. If it doesn’t tick both those boxes, ditch it.
If you arrive at the tribunal on your own, or on your own apart from a representative or a family member, it can be quite intimidating to see 2 or 3 managers and half your former employer’s HR department there on the other side.
Try not to take this personally, or let it worry you unduly.
First, even if all of these people are proposing to give evidence, it doesn’t necessarily put you at a disadvantage: witnesses lose cases more often than they win them – by wheeling out a lot of witnesses, your employer may actually be improving your chances.
And if several of your former colleagues are there just to observe proceedings, it can feel like a calculated attempt to intimidate you. But it probably isn’t: more likely, it’s just that it’s useful for them to see what the process is like. For most managers and HR people, ET hearings are both a fairly rare event, and a stressful one. It’s useful for managers to see their colleagues having to defend their decisions under cross-examination in a case in which they are not directly involved: for one thing, they may learn things that make it less likely for their decisions to be challenged in tribunal in the first place; and if they do ever have to give evidence in a tribunal hearing in the future, at least they will have seen the process before, so it won’t be completely unfamiliar.
… 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.)
I recently had a mildly unsettling experience at the Employment Appeal Tribunal.
When the clerk called me in he mentioned that HHJ McMullen QC followed the old tradition of a relaxed dress code in hearings during August, so if I wanted to take my jacket off I could. (This tradition is new to me, but I assume it stems from the fact that, in The Good Old Days, courts used to shut down in August.)
This might not sound particularly disturbing news, but minutes before a hearing is due to start, it’s the sort of thing that can grab a larger share of your attention than it deserves. “Is it really appropriate to take my jacket off? Will it look too informal? But if I don’t will the Judge think I’m a prat?”
I decided that the room was rather warm; that the clerk was in his shirt-sleeves and that I could hardly get in real trouble for following a suggestion made by the Judge.
So I took my jacket off. The judge was also without a jacket. So far as I can tell, it made no difference whatsoever to the hearing or the result.
The point of this post is two-fold.
First, if you have a hearing in the EAT in August in front of HHJ McMullen, be warned that you too may have to resolve the perplexing jacket dilemma.
Second, I think it’s worth saying that almost everyone suffers these weird social wobbles from time to time. High stress, unfamiliar or hierarchical environments are particularly likely to push us off balance. It almost never matters and other people hardly ever notice – with the clarity of hindsight I can see that HHJ McMullen couldn’t possibly have cared less whether I was wearing a jacket or not.