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.

Finding what you want in a hurry is a large part of conducting a hearing in an orderly way. Having to keep pausing in the middle of your cross-examination or submissions to hunt for a document wastes time time and interrupts your train of thought at best – and if you can’t find what you’re after, may deprive you of good points you could otherwise have made.

A lot of the answer is just to know the bundle well. But you can also develop certain habits that will help you navigate smoothly. What the habits are will depend on your own way of thinking and doing things. You may find colours helpful – for instance flagging certain sorts of documents in particular colours, highlighting one corner of respondents’ witness statements in one colour, claimants’ in another, using coloured paper for a particular document (e.g. your chronology) that you may want to refer to a lot. Or it may be about where you put things: if you always tuck your list of issues inside the front flap of your bundle, then you will always know where to look for it. If you always write a list of the witnesses and key players on the first page of your notebook, you will know where to find that too. If you’re lucky enough to be able to commit key page numbers to memory without breaking sweat, do that. If your bundle runs to several volumes, make sure there is a clear label on the inside cover of each volume as well as on the spine – that way if you have 2 or 3 volumes open, you will still be able to tell at a glance which is which.

These are all just examples. The real point is to notice what’s tripping you up, and then apply a bit of thought to how you can prevent it.

Unless you have seen a written order from the tribunal; heard a Judge give an order or had a conversation with the tribunal staff in which they said explicitly that the hearing will not go ahead.

If you are in any doubt at all, ring the tribunal and ask.

If you can do so without spending a fortune on photocopying or doing injury to your back, it is sensible to arrive at the tribunal with more copies of all the relevant documents than you expect to need.

If a few copies of a schedule of loss or witness statement stay in your bag throughout the hearing, no harm is done. But running a case when some people don’t have all the documents is a serious pain. So it is best to err on the side of caution.

Also, documents do get damaged or lost – particularly over the course of a long hearing. If a tribunal member manages to spill water over his chronology, it is handy to be able to pass another copy up.

Two previous posts (learn to type and laptops in the tribunal)
suggest that it’s useful to be able to take typed notes of evidence during hearings. This is about one of the reasons why that is so.

If your typing speed is up to it, a lot of the time you will be able to capture most of the actual words spoken by the witnesses. If you’re taking notes on paper, unless you have shorthand skills, you’ll just be writing down the gist.

Sometimes the gist is good enough. But when a witness is hedging and evading, there often isn’t any gist. That’s the point. The interesting thing about their answer to the particular question is that they don’t have an answer.

Here’s a comparison drawn pretty much from life. First, the typed note of what the witness actually said:

Q: It was a make believe project wasn’t it?

A: What I mean by that in terms of his job responsibilities but also if you look at job responsibilities that doesn’t expand his management of projects which is what he said he was looking to do. I didn’t give him make believe projects. To make it a little bit easier to understand this was an area that was new technology, if I am in my current job I could look at different things there was lots of different new things coming in. I’m looking at the other managers, the projects and he had great visibility. It’s an opportunity to really grasp some of these projects that was given him to do.

If you were taking a manuscript note of evidence like this, you’d probably not have got much more than:

Q: It was a make believe project wasn’t it?

A: No

The latter is far too kind – and not in a good way. When it comes to closing submissions, being able to remind the tribunal just how much meaningless noise a witnes has made by quoting bits of their woffle word-for-word can be very powerful.

Most importantly, it will tell you where and when the tribunal will take place. This sounds obvious. It is, but people do get it wrong. If you rely on a conversation with a collegue or client, you risk that he mispoke or you misheard. Make sure you see the notice of hearing to be sure.

The other pitfall to avoid is that some of the smaller hearing venues are administered elswhere. Brighton, for example, is administered in Southampton. So letters from the tribunal will have the Southampton address. It is easy to assume that the case will be heard in Southampton. Again, the notice of hearing will put you right.

In addition to time and place, the notice of hearing may contain other useful information. It will say whether you are expected to deal with liability and remedey, or liability alone. If you are actually listed for a Pre-hearing Review it will say so, and should give some indication of what issue will be dealt with.

You should always see the notice of hearing in any case you are involved in. If you do not have it, get a copy.