Tagged: issues

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Keep it simple

Most employment tribunal claims are about dismissal (actual or constructive); and most of the compensation awarded in most claims reflects loss of income from the job.

If before the end of your employment, you were treated badly by your employer in a large number of different respects, it can be easy to lose sight of this. You want the tribunal to know the whole story. You want to tell them about (e.g.) the unfair decision to disallow your expenses claims, the unreasonable refusal to allow you to use the accounts photocopier, the stationery cupboard incident, the time you were left out when the birthday cake was distributed, the discourtesy of the manager who conducted your grievance hearing, the unfairness of the way the grievance appeal panel was selected, the employer’s obstructiveness in agreeing a date for the grievance hearing, the unreasonable insistence on conducting the hearing at Head Office, etc etc etc.

You may feel that all of these things are examples of discrimination against you, or your employer’s bad attitude to you. You may even be right.

But most of this will make no significant difference to how much money the tribunal orders your employer to pay you at the end of the case.

So if you really think the tribunal needs to hear about it to understand the story, put it all in your witness statement. But leave it out of your claim form and your list of issues.

Why? Why should you let your employer get away with even relatively minor wrongs?

There are two reasons. The first is that if you include everything, you will obscure the important points. You’ll risk making the tribunal think you are obsessed with trivia, so that by the time you get to the heart of your case you have lost their interest and sympathy.

(The truth is, being badly treated by your employer hurts a lot. Most people who have suffered this over a period lose perspective, and get a bit obsessive about it. But the tribunal doesn’t know you. So they can’t tell at a glance whether you’ve been treated badly because you’re obsessive and annoying – or you’re obsessive and annoying because you’ve been treated badly. So if you can keep an eye on the this tendency in yourself and restrain it, you’ll improve your chances.)

The second is that including everything will increase the duration of the hearing. This will certainly mean more wear and tear for you; and if you’re paying for legal representation, it will increase the costs. So when you’re tempted to claim for umpteen individual detriments, ask yourself this question: am I likely to get enough in additional compensation for injury to feelings for these incidents to make up for the cost of the extra hearing days? If the answer is no, trim your claim.

As a rule of thumb: if you’ve got a list of issues with more than about a dozen questions on it, think very hard about whether your case really needs to be so complicated. Most don’t.

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Ignore the soft fruit

Imagine an enemy posse rushing towards you. They are dressed in bizarre and elaborate costumes, including papier mache horns, cardboard armour and joke-shop Dracula fangs. Some are brandishing pillows in a threatening manner; others are armed to the teeth with a variety of soft fruit. One has a pointed stick. All are yelling abuse.

Faced with this threat, what do you do? Wrestle them for their cushions? Rugby tackle them, pin them down and try to de-fang them? Yell abuse back, but louder? Ambush them for their fruit and make a summer pudding? Or do you focus all your attention on the threat posed by the pointed stick?

The answer may be obvious – but it is surprising how willing parties to litigation are to be distracted into squabbles that have no chance of determining the outcome of the case.

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Rank your points

If you have an active case, either as a representative, or a litigant in person, grab a pad of paper and try this exercise. It will probably take about 10 minutes.

Without looking at any papers, write down everything that the respondent did wrong. Try to write in short sentances, with one point per sentence.

For example:

  • They didn’t let me bring my union rep to the meeting
  • Nobody talked to Alice, who could have told them what happened
  • Dismissal was much too harsh. I just lost my temper for a moment
  • They didn’t let me ask Tom any questions during the meeting
  • Bill shouldn’t have been the one running the appeal. He was involved in the original incident
  • This sort of thing happened all the time, it was unfair to punish me but nobody else.

You will probably find that many of your points are connected. So group those together under general headings.

  • The disciplinary process wasn’t run properly
    • They didn’t let me bring my union rep to the meeting
    • They didn’t let me ask Tom any questions during the meeting
    • Bill shouldn’t have been the one running the appeal. He was involved in the original incident
  • The investigation wasn’t good enough
    • Nobody talked to Alice, who could have told them what happened
  • Dismissal wasn’t a fair sanction
    • Dismissal was much too harsh. I just lost my temper for a moment
    • This sort of thing happened all the time, it was unfair to punish me but nobody else.

Now, rank these general points in order of importance.

  1. Dismissal wasn’t a fair sanction
  2. The investigation wasn’t good enough
  3. The disciplinary process wasn’t run properly

This list is what your case is about.

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The Small Picture

It is always worth paying a bit of attention to the more obscure bits of the ET3 form.

This is the form the Claimant gets back from their employer, after they have sent their ET1 to the tribunal. It sets out the employer’s response (subject to their drafting skills).

It is easy to focus on Paragraph 5, which is the main section. This is important, but make sure you look at the other parts too. These will tell you, for example, whether they accept the claimant’s employment status and if they dispute her working hours.

If one of these, more peripheral, issues are going to be argued, it is important to realise that as soon as possible. And, if the employer has said that they are not, but later tries to go back on their statement, it is reasonable to point to the ET3 and ask why they have changed their position.

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Documents drafted by the other side

Quite often, the tribunal will instruct the parties to produce an agreed document – a chronology or a list of issues are the most common. This means that one party will come up with a first draft for the other to comment on, and then there will be a certain amount of to-and-fro until they have an agreed draft.

There two main points about this process:

1. If you do the first draft, make it genuinely neutral. Don’t try to slip in your own spin or slant: this is not the moment to try to pull a fast one or score a tactical advantage, and the attempt will just waste time and cause unnecessary friction.

2. When commenting on a draft produced the other side, don’t make unnecessary changes. So if your normal habit is to write dates in the form ‘7 Jan 09’ and the draft you are offered uses ‘7/1/09,’ leave it be. Don’t make any change that increases the length of the document unless it also makes it clearer or adds necessary extra content.

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What is a list of issues?

Tribunals often direct the parties to agree a list of issues, but they don’t always explain what that means or how you should go about writing one.

A list of issues is a list of the questions that the tribunal will have to decide. That means it should take the form of a list of questions – not a list of statements. The point is not to make assertions about your case, but to define the things the two sides disagree about. Even people who disagree strongly ought to be able to agree what it is that they are arguing about.

A list of issues can be very short. Suppose you have been dismissed for being rude to your line-manager. Everyone agrees what you said, that this was the reason why you were dismissed, and that you were dismissed without notice. Your list of issues might look like this:

1. Did the Respondent follow the statutory procedures before dismissing the Claimant?

2. Was the decision to dismiss fair or unfair?

But your case may be much more complicated than that. Suppose you resigned after a period in which you had raised a number of complaints about overwork and the conditions in which you were working, and your employer had started a capability procedure. Your list of issues might look something like this:

1. Was the Claimant’s complaint of 11 November 2008 to Peter Waters a protected act for the purposes of section 43A of the Employment Rights Act?

2. Was the Claimant’s grievance of 13 November 2008 to Martine Palmer a protected act?

3. Did the Claimant’s statements about working conditions in the course of his grievance hearing on 26 November 2008 constitute a protected act?

4. Were the Claimant’s complaints about his working conditions the reason for the Respondent’s decision to commence the capability process on 3 December 2008?

5. Did the following, or any or all of them in combination, constitute a fundamental breach by the Respondent of the Claimant’s contract of employment:-
(i) the manner in which the Respondent conducted the grievance hearing on 26 November 2008;
(ii) the Respondent’s decision to start a capability process;
(iii) Martine Palmer’s remark to the Claimant immediately before the meeting of 10 December in which she said, ‘You’ve been nothing but trouble since we took you on. You should never have got through your probation.’

6. If the Respondent did commit a fundamental breach of the Claimant’s contract of employment, did the Claimant resign in response to it?

7. If the Claimant was constructively dismissed, was the reason for the dismissal a protected act?

If you propose this list of issues to the Respondent, they might object that they don’t accept that Martine said ‘You’ve been nothing but trouble..etc.’ If so, you don’t need to argue this out now: clearly it is something the tribunal is going to have to make a decision about. In other words, it is an ‘issue.’ So the sensible response is to agree to amend your list of issues to add the question ‘Did Martine Palmer say, ‘You’re nothing but trouble…etc.’?

It is important to make sure all your main points are included. For example, in a discrimination case, make sure you include everything that you say your employer did to you that was an act of discrimination. If there are various different ways in which you can put your complaint, make sure you include both or all – if for example, you say that your dismissal was unfair and it was an act of sex discrimination, make sure you put in both questions: ‘Was the dismissal unfair?’ and ‘Was the Claimant dismissed on grounds of her sex?’

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A bit of a git

A telephone conversation, overheard in the FRU office, several years ago:

Mr Smith, you’ve told me what happened. It seems to me that basically you’re saying that your ex-boss is a bit of a git.

Now, I’ve heard what you’ve got to say, and I’ve read the documents. You know what? I agree. He is a bit of a git.

So, what’s going to happen next, is that we’ll turn up to the tribunal on Monday and they’ll hear the case. And I bet they’ll think he’s a bit of a git too.

The problem, Mr Smith, is that being a bit of a git isn’t actually against the law.

The moral of the story is that tribunals are there to decide whether the respondent has broken the law, not to make general judgements about the parties involved.

Often litigants (on both sides) will spend a lot of time and effort throwing mud at each other about their business practices; quality of work; management decisions; criminal records; sexual morality and even personal hygiene.

Sometimes this is relevant. A capacity case, for example will often revolve around the claimant’s competence in their job. And if the claimant’s case is that the problems had been caused by inadequate support by his management their decisions will need to be examined. In a whistle-blowing case you may spend a good deal of time considering the respondent’s efforts to avoid their obligations to Her Majesties Revenue and Customs or the Health and Safety Executive.

Even if it is not strictly speaking relevant, mud slinging can be effective. A tribunal who feels that one side has been hard done by or mistreated is likely to be influenced by that impression. Trying to make yourself look good at the expense of the other side is part of the game.

But the old adage about it being hard to throw mud without getting some of it on you applies. Irrelevant accusations or criticisms will almost always do you more harm than good. Making accusations without evidence makes you look paranoid.

In general, therefore, it is sensible to keep all blows above the belt. Always remember that your aim is to prove your case, not prove that your opponent is a bad sort.

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I don’t object!

Courtroom dramas are filled with beautiful people who, at the slightest provocation, leap to their feet to shout “I object!”

Of course, real life in the employment tribunals is not like this. But a lot of litigation is similar. One side will want to do something, or do it in a particular way, while the other side tries to stop them.

A lot of these arguments are important. Many are not. But people (and lawyers are some of the worse) often fall into the trap of objecting to everything the other side tries to do.

This is foolish for several reasons. It makes litigation far more emotionally stressful than it needs to be – and it is already quite stressful enough. It is also tactically unwise. If every single possible point becomes an epic battle two things will happen. Firstly, the case will take longer than it needs to. There will be more hearings, more correspondence, more phone calls and more work. This is bad for everyone.

Even more damagingly, taking bad points will obscure your good points and damage your credibility.

Imagine that you are in a case management discussion where a tribunal has to deal with four issues. Three of these are unimportant. The final point is vital to your case.

Then imagine the following approach:

Opposing Counsel: Sir, on the first point we suggest this…

You: I object to that, because..

Later…

Opposing Counsel: On the second point, I submit that…

You: That’s completely wrong. I say….

Later…

Opposing Counsel: Well, I hope we can agree on the third point.

You: Certainly not. I submit…

Much later…

Opposing Counsel: Finally, Sir, we need to deal with disclosure. It really is disproportionate to ask my client to disclose the documents the Claimant asks for. The request is far too wide…

You: Some of those documents are vital to my case. They are directly relevant, because they deal with how other employees in the same circumstances were treated…

You might win the last point, but, you may well be starting from behind. If the issues were unimportant, or worse, ones where you had no real grounds to object, you will have turned the tribunal against you.

This is not unreasonable. Tribunals will judge you on what points you take and how you take them. They will do their best to take each point on its merits. But if they conclude that you will object to everything and will rarely have good reasons, they will stop taking you seriously.

Then consider the alternative approach:

Opposing Counsel: On the first point…

You: That’s fine.

Opposing Counsel: On the second point…

You: I have no objection to that.

Opposing Counsel: On the third point…

You: I can agree to that as well.

Opposing Counsel: Finally, on the fourth point…

You: I’m afraid I can’t agree here. Those documents are important and relevant. My case is based on disparity of treatment. Evidence of how other people in the same position were treated is vital to my case…

Now, far from being handicapped, you will be starting with an advantage. The initial reaction from the tribunal will almost certainly be “He didn’t object before. He wouldn’t be arguing here unless there was a good point to make”. They will listen to you with more sympathy and with greater attention. You are more likely to win the point.

This is not a magic wand. Letting three points go past doesn’t entitle you to win the fourth one. But if the first three points don’t matter, you are not giving anything up by conceding them. And the advantage on the final issue might be decisive.

This approach can, of course, be taken to far. Sometimes the respondent will be unreasonable and you will have to fight everything to prevent them running over you. Occasionally, even if both sides act well, the case is just one where there can’t be much common ground. In those cases there is nothing to do but fight.

The point is to fight the issues that matter. That is, to fight the ones that will determine who wins the case.