HM Courts and Tribunals Service is currently trying to make more efficient use of their estate (i.e. the buildings they own).
Historically, different courts and tribunals have tended to keep to themselves, with employment tribunals happening in designated employment tribunal buildings; tax tribunals happening in tax tribunal buildings and so on. Most of these buildings contained both hearing rooms and the admin staff dealing with the cases.
This is changing as HMCTS tries to make the system more efficient and less expensive. What this means, at least at the moment, is that some tribunal hearings are being listed away from the tribunal office.
So, if your notice of hearing says ‘Ambridge Magistrates Court’, don’t panic. You have not been somehow misrouted into into the criminal justice system. They’re just borrowing a spare room.
If you are involved in one of these cases it’s worth being a bit careful to avoid embarrassing mistakes. Don’t turn up at the Employment Tribunal office if you’re actually being heard down the road at the Social Entitlement Chamber’s building. And send letters to the Employment Tribunal Office, even if the hearing is happening somewhere else.
We have both previously posted about Mehta v Child Support Agency, in which the EAT doubted the usefulness of having witnesses read their statements aloud: see Reading statement aloud and Follow up on witness statements.
Another consequence of the shift in practice this has caused is that tribunals are more likely to want to pre-read not only the witness statements, but also the key documents they refer to. This means it’s a good idea to have formed a view before the hearing starts which documents the tribunal is going to need to read in full, and roughly how long it’s going to take them. Agree a pre-reading list with the other side if possible.
How do you decide which documents to put on your list? This isn’t a hugely important decision, so don’t agonise over it – but sensible decisions will help the hearing go more smoothly, so a few rules of thumb may be helpful.
Include any substantial document that forms a crucial part of the story: e.g. in a dismissal case, notes of the investigation meeting, the letter inviting you to a disciplinary hearing, notes of the disciplinary hearing, the dismissal letter, your appeal, notes of the appeal hearing, the appeal outcome letter
But don’t make them read lengthy documents just for ‘completeness’ – so e.g. if there are pages and pages of notes of the investigation meeting and the disciplinary hearing, covering very similar ground, you may not need to make the tribunal pre-read both.
Just because you haven’t put a document on the pre-reading list, it doesn’t mean you can’t take a witness to it in cross examination.
Don’t include documents that won’t make any sense to the tribunal until a witness has explained how it works and what it means.
Don’t bother with very short documents whose whole significance the tribunal can be expected to get at a glance.
How long will pre-reading take?
It depends, of course. How many pages there are to read. Whether they are single or double spaced. Whether they are typed or handwritten; and if handwritten – whether by a primary school teacher or a doctor. How quickly the slowest member of the tribunal reads. Whether they are clear and succinct, or waffly and verbose.
For now, try 50 pages an hour as a rough rule of thumb. And please make a note in your next hearing of how many pages you ask the tribunal to read, and how long it takes them – and then comment on this post, so that we can collect some data and refine this estimate.
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 .
When you arrive at the tribunal, it’s normal to introduce yourself to the other side. Often there is something specific to discuss – last minute negotiations, late evidence, a postponement request or similar. Even if there is not, it is sensible to check in with them, if only because they may have something specific to deal with.
If you don’t know the other side’s representative, the standard approach is to put your head round the door of the Respondent’s waiting room and say, in a carrying tone, ‘Is there anyone here for Smith v Hogan?’
It’s best to use both parties’ names. It gives your opponent two chances to recognise the case and, if you (or your opponent) has got the pronunciation of one name wrong, they should recognise the other one. This sounds a bit silly, but bear in mind that your opponent may be busy reading something in the bundle, on the phone to their solicitor, or otherwise distracted.
If your opponent is there, she should stand up and introduce herself. When both sides are represented, the representatives will then normally step outside the waiting room to talk.
Quite often, a represented party will have arrived before their lawyer. In general, you shouldn’t go into the detail of a case with a represented party. It’s perfectly all right to say something like: ‘We’ll be wanting to rely on a few additional documents – here are copies for you. Perhaps you could ask your lawyer to come speak to me about this when he arrives?’ But a detailed discussion of the case or negotiations should wait for the lawyer to arrive.
Tribunals and lawyers will sometimes refer to a ‘Judge sitting alone’. This means that he is sitting without the lay-members. This is common in case management discussions and pre-hearing reviews.
What it doesn’t mean is that the judge will sit alone in the sense that nobody else will be there. If you’re a party or representing a party, you still need to go.
Of course, sometimes the tribunal will meet without the parties, usually to discuss their decision. This is called a ‘hearing in chambers’. Another similar bit of jargon is a hearing ‘in private’, which means that the tribunal, parties and representatives attend, but the public may not.
Like a lot of jargon, this is fairly obvious to lawyers. Non-lawyers may wrongly conclude that the words mean what they seem to mean, and not what lawyers have decided that they mean. If you are ever unsure, ask.
Employment tribunal hearings are stressful, and lots of people become more compliant and suggestible under stress than they are normally. (Many people are scarily compliant to start with, as the Milgram experiment notoriously demonstrated in 1961. )
This can mean you’re so busy conforming to what you think is expected of you that you don’t assert yourself when you need to.
In particular, if you are representing yourself, you may be doing your very best to conduct the case as if you were a professional lawyer. That’s a good idea, up to a point. But if this isn’t something you do all the time, you will need a bit more latitude than a lawyer. A lawyer is expected to have read the legal authorities relevant to the case; to understand any technical terms used; to be ready to make submissions immediately after the evidence is finished; to be able to read and assimilate new documents quickly. None of this necessarily applies if you are representing yourself.
So if the other side gives you some documents you haven’t seen before, ask for time to read them. If the lawyer on the other side or the tribunal uses technical terms you don’t understand, ask for an explanation. If you need to collect your thoughts after the end of the evidence before making your submissions, ask for a short break in which to do so. If the other side gives you some copies of law reports they say are relevant, ask for enough time to read and understand them.
What do you do if you’re desperate for a pee and there’s still an hour to go until lunchtime or the end of the day?
If you’re just observing the hearing – whether it’s your case, or you are a friend or relative of the claimant’s, or a member of the public, or you’re a witness waiting to give your evidence – you can just quietly leave the room. You may have various reasons for coming and going during the hearing, and there’s no obligation to stay put once you’re there.
But if you are in the middle of giving your evidence, or you are representing one of the parties, the hearing can’t go on without you. That doesn’t mean you have to be heroic: just ask for a break. For some reason, the standard way of saying this in the employment tribunal is to ask for a ‘comfort break.’ It is a common enough request and one that is pretty much bound to be granted: there’s no need to feel anxious or embarrassed about it.
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.
Clerks are the people at the tribunal who handle the administration on the day of the hearing: they take your name when you arrive, collect bundles and witness statements for the tribunal and the witness table, ask whether you want to affirm when you give your evidence, or swear on a holy book, take you to your tribunal room when the tribunal is ready to begin, and so on. They aren’t lawyers, so you can’t expect them to give you legal advice – but they will have a lot of practical information about how the tribunal works, and mostly they are pleasant and helpful. You can ask them, for instance, if you need to pass a message through to the employment judge – for instance to ask for more time to finish negotiating; or if you need to know where the nearest print shop is (they won’t be allowed to do photocopying for you unless told to by an employment judge); or whether the other side has arrived at the tribunal yet; or to find out if there’s a room you can use to meet with the other side for negotiations.
First thing in the morning, until about 10 am, there will be a clerk on the reception desk at most tribunals. At other times, if they are not around, you can probably contact them using the telephone on the reception desk – there will be instructions on or near it about which extension to call.
Getting familiar with the hearing bundle is one of the most important things you have to do when preparing to represent a client (or yourself) in the employment tribunal.
To do this efficiently, you need to have a range of different reading speeds. Some (often most) of the papers in the bundle will be completely irrelevant to anything you have to argue about, and you can skip over them very fast. Often there will be a few pages that are absolutely key – and by the end of the case, you will have pored over them for hours, decorating them with highlighters and cross-referencing them to other documents. Other pages will have a significant line or two, but mostly not be very interesting.
What this means is that you need to read some documents carefully; skim-read others; and – at any rate on your first pass through the bundle – just note that others are there without reading them at all.
A related point is that you need different reading speeds for different stages of preparation. If the case is new to you, you will probably want to start with the ET1 and the ET3 to find out what the case is all about; then read the witness statements for a bit more detail; and then go through the bundle. But this first read through of everything will probably be quite fast: the pleadings and statements are important, and you are going to have to get to know them well before the end: but at this stage, you just don’t know what the case is about, so you can’t tell which bits to focus on. So don’t read everything as if your life depended on it: just get the big picture. You can fill in the detail later.