One of the things you do in a tribunal hearing is read how you’re coming over to the panel. Then you can adjust your approach accordingly. If they are with you on an issue, you may want to quit while you’re ahead. If they’re not you may want to redouble your efforts (or move onto a new point). The ideal is to spend the minimum time on matters where the tribunal is already convinced (or cannot be convinced) to focus on the areas where you may change their minds.

The problem with this is that it is easy to misread the tribunal.

The most damaging result of this is that you move briskly over an area – thinking that the tribunal agrees with you – when you should be dealing with it in detail. This leads to the horrible sinking feeling when you later realise that the tribunal was not convinced at all.

Of course, it is equally possible to speak on length on something that the tribunal is already convinced of. But this tends to be less damaging. This is partly because over-convincing someone of something is normally better than failing to to convince them at all. It is also because the tribunal is more likely to step in to move you on from a point they agree with than to ask you to go back to a point that they disagree with.

There is no absolute solution to this problem. You could simply deal with every point in exhaustive detail, regardless of your reading of the tribunal. But this is likely to do do more harm than good. A concise, punchy submission focused on the areas that the tribunal is in doubt, will be more convincing than anything approaching exhaustiveness.

Like many areas of advocacy, the only thing to do is to be aware of the potential problem and aim at a happy medium. Remember that, in the absence of a clear steer, it is hard to be certain what the tribunal is thinking. Be prepared to err on the side of caution, particularly on an important point. But try not to over-correct and risk boring the tribunal, losing momentum and obscuring your best points.

A standard instruction that turns up from time to time in case management orders goes:

Legal submissions (if any) shall be in writing and accompanied by a copy of any Law Report(s) referred to. Three copies will be required by the Tribunal and should be brought to the hearing.

There are two problems with this: (i) it assumes you know what legal submissions and Law Reports are, despite the fact that many claimants (and quite a lot of respondents) will be representing themselves with no legal advice; and (ii) it’s silly.

What it means

‘Legal submissions’ are arguments about the law and its consequences. So if you say ‘my employer threw a waste-paper basket at me,’ that’s an assertion of fact (true or not). It’s not a legal submission, and it belongs in your witness statement. But if you say, ‘throwing a waste-paper basket at me was a breach of the implied term of trust and confidence in my contract of employment, and that was a fundamental breach entitling me to resign without notice,’ that’s a legal submission. You don’t need to put it in your witness statement, but you do need to say it at the end of the hearing – after everyone’s given their evidence – when you are telling the tribunal why you should win. Telling the tribunal why you should win is called ‘making submissions,’ and the part of that that is about what the law says and why it helps you is ‘legal submissions.’

Law reports are official printed accounts of cases that have been decided in the past, in this context mainly by the Employment Appeal Tribunal, the Court of Appeal or the House of Lords (or Supreme Court as it now is). For instance, if your employer says you didn’t resign because he threw a waste-paper basket at you but because you’d found another job – so it wasn’t constructive dismissal – you may want to remind the tribunal of Nottinghamshire County Council v Meikle [2005] ICR 1. That’s a case in which the Court of Appeal said that a fundamental breach doesn’t have to be the only cause of the resignation for the resignation to count as constructive dismissal, so it would help you to argue your case in this situation.

So the instruction quoted means that if you want to say anything about the law, you must say it in writing, and you must bring three copies of what you want to say to the tribunal; and if you want to rely on any law reports, you must attach copies.

Why it’s silly

It’s silly, because the tribunal doesn’t actually mean it. The tribunal can’t properly stop you making oral submissions on the law if you need to, and they won’t try. It’s true that if you want to make a legal point that is at all complicated, it’s a good idea to make it in writing. But often you won’t. Many cases will run from beginning to end without any significant dispute about what the relevant law is: the dispute is about who did what, when and why, and whether it was fair. But minor questions of law may well come up unexpectedly, and both parties will certainly be allowed to say their piece on them.

The advice to bring 3 copies is unhelpful, too, because if you do decide to do some written submissions, you will actually need to take 5 copies with you: 3 for the tribunal, one for you, and one for the other side.

Inspector Gregory: “Is there any other point to which you would wish to draw my attention?”
Holmes: “To the curious incident of the dog in the night-time.”
Inspector Gregory: “The dog did nothing in the night-time.”
Holmes: “That was the curious incident.”

People are often worried about missing evidence. For example, a claimant knows that most internal communication between his employer’s managers is conducted by email. But, during the disclosure process, no relevant emails are disclosed and their existence is denied.

One approach is to try to persuade the tribunal to allow you to dig out the information. Theoretically, a computer expert could be instructed to search their system and recover relevant evidence. This, however, will be expensive and extremely disruptive. It will almost never be considered proportionate by the tribunal and in the vast majority of cases it is futile to even try.

In 999 cases of 1000 the appropriate course is simply to cross-examine and make submissions on the missing evidence. You can point out just how implausible it is that no emails were sent. If it really is terribly unlikely, and you can convince the tribunal of that, they are likely to draw very negative conclusions about the Respondent’s credibility and conduct.

It is often useful to number issues or similar topics. It provides structure and organisation. For example, in a written submission it is common to see something like:

Issues

1. Was Mr Smith an employee of Widget Makers Incorporated?
2. Did the letter sent by Mr Jones to Mr Smith comply with the requirements of a Step 1 letter under the Standard Dismissal and Disciplinary Procedure?
3. Did the decision to dismiss Mr Smith fall within the range of reasonable responses?
4. Should Mr Smith’s compensatory award be reduced to reflect his contribution to his dismissal?

But always remember that the point of doing this is to make things easier, not to introduce a new source of potential confusion.

If your written submissions list a set of issues on page 2, then on page 11 you refer to ‘Issue 3′, there is a good chance that the person reading it will not remember what that issue is. They will have stop reading, break their train of thought, and flip back to page 2. Or they may press on, uncertain of what you are getting at, but hoping that it will become clear from what comes next. Neither of these possibilities is a good thing.

The solution is to refer to the nature of the issue as well as the number. For example:

Issue 3: Range of reasonable responses

Submissions arguing that dismissal fell outside the range of reasonable responses.

A number of people have commented or emailed about “Do not submit” which recommended that advocates eliminate “I submit” from their vocabulary when addressing the tribunal.

Since the consensus is against me it might be worth setting out in more detail why I dislike it.

Firstly, it offends against the signal to noise principle. Submissions should contain as high a percentage of substance as possible. Anything that does not contribute to your argument should be removed. “I submit” adds nothing meaningful; the tribunal knows you are making submissions.

Secondly, there is a real risk of it becoming an annoying tick. Any phrase repeated often is likely to grate. Once you start saying “I submit” it is hard to know when to stop. After all, everything you say is a submission. Many people find themselves repeating in almost every paragraph they write or every minute as they speak. This has much the same impact as fingernails on a blackboard.

Finally, it puts distance between you and your submissions. It is not as bad as saying “My client’s instructions are to submit”, but the affect is similar. By saying “I submit” you are emphasising your formal role. This may be more comfortable for you the advocate, but it make it harder to communicate conviction.

Abigail makes the good point that “I submit” can be used to show respect for the tribunal. There are certainly moments when this is useful. Say that the tribunal is strongly against you on a point and the dialogue is beginning to descend into a wrangle, rather than a discussion. Using “I submit” might emphasise the formal roles and defuse the confrontation. In general, however, this should not be necessary. You must respect the tribunal, but this means begin polite to them and keeping in mind their judicial role (meaning that you recognise that they are in charge of the hearing). Formal phrases, be they “I submit” or “Respectfully…” do not add anything to this.

Does anyone else have any views?

Many lawyers write and say things like:

• In my submission, the employer failed to follow a fair procedure
• This, I submit, was an act of direct sex discrimination
• I am going to submit that this claim should be allowed in out of time.

All of these examples can be improved easily, by removing any reference to submissions. For example:

• The employer failed to follow a fair procedure
• This was an act of direct sex discrimination
• This claim should be allowed in out of time.

The second examples have the advantage of being shorter, clearer and more direct. This makes them more persuasive.

The Court of Appeal has commented on the proper use of skeleton arguments in Tombstone Ltd v Raja & Heals.

Although the case had nothing to do with employment law, the comments are relevant to skeleton arguments generally – in the EAT as well as the Court of Appeal.

The full comments of the Court are set out below. In summary, they warn against excessive length and make clear that skeleton arguments are intended as an aid to oral advocacy.

This is not straightforward. It is clear that in Tombstone itself the skeleton was too long. It is also true that a concise and focused argument will be more persuasive than a verbose one.

On the other hand, taking the guidance in Tombstone too much to heart is probably a mistake. In our experience, ‘skeleton’ arguments do now almost invariably amount to full written submissions capable of standing alone. Whether that’s a good thing is open to debate; but the reality is that the members of appellate courts will normally have read the skeletons and formed at least a provisional view before the hearing begins. That means you have to do a lot of the work of persuading them in your skeleton – especially as the chances are your opponent will have.

If some judges will bark at you for producing an excessively fleshy skeleton, others will raise an eyebrow if you try to say anything in oral submissions that isn’t covered in your skeleton – or, worse, make up their minds on the written material and then scarcely let you get a word in edgeways once you’re on your feet.

The key is to understand that a well written skeleton can make your whole argument, without becoming over long.

Lord Justice Mummery said:

122. We end this judgment with a criticism of the excessive length and complexity of Tombstone’s skeleton argument. It has 110 pages of text plus 64 pages of Appendices. Although its authors set out to assist the court, as well as the client, by a very thorough presentation of Tombstone’s case, it is sensible to set reasonable limits to its length.

123. Mr Onslow described it “as an extremely long document” for a case that, while unusual, was not unduly complex. The appeal was from a judgment of modest length (27 pages). It was very hard, he said, to see what justified such voluminous arguments. Most of the legal issues have been settled by existing authority. No primary findings of fact are challenged on the appeal. He added that, from Healys’ perspective, this had added to the length of their skeleton argument (56 pages), which they had tried to keep as short as possible. It had also added considerably to the cost and length of the appeal.

124. The length of Tombstone’s skeleton did not assist the court. In fact, it tended to detract from Tombstone’s case, which was accurately and far more succinctly stated by Mr Onslow in his written and oral responses to it. His team adopted the technique of briefly stating the points taken by Tombstone and then concisely commenting on them.

125. Practitioners who ignore practice directions on skeleton arguments (see CPR 52PD paras 5.10 “Each point should be stated as concisely as the nature of the case allows”) and do so without the imposition of any formal penalty are well advised to note the risk of the court’s negative reaction to unnecessarily long written submissions. The skeleton argument procedure was introduced to assist the court, as well as the parties, by improving preparations for, and the efficiency of, adversarial oral hearings, which remain central to this court’s public role.

126. We remind practitioners that skeleton arguments should not be prepared as verbatim scripts to be read out in public or as footnoted theses to be read in private. Good skeleton arguments are tools with practical uses: an agenda for the hearing, a summary of the main points, propositions and arguments to be developed orally, a useful way of noting citations and references, a convenient place for making cross references, a time-saving means of avoiding unnecessary dictation to the court and laborious and pointless note-taking by the court.

127. Skeleton arguments are aids to oral advocacy. They are not written briefs which are used in some jurisdictions as substitutes for oral advocacy. An unintended and unfortunate side effect of the growth in written advocacy (written opening and closing submissions and “speaking notes”, as well as skeleton arguments) has been that too many practitioners, at increased cost to their clients and diminishing assistance to the court, burden their opponents and the court with written briefs. They are anything but brief. The result is that there is no real saving of legal costs, or of precious hearing, reading and writing time. As has happened in this case, the opponent’s skeleton argument becomes longer and the judgment reflecting the lengthy written submissions tends to be longer than is really necessary to explain to the parties why they have won or lost an appeal.

128. The skeletal nature of written advocacy is in danger of being overlooked. In some cases we are weighed down by the skeleton arguments and when we dare to complain about the time they take up, we are sometimes told that we can read them “in our own time” after the hearing. In our judgment, this is not what appellate advocacy is about, or ought to be about, in this court.

If you have been knocking around the wonderful world of employment tribunals for a little while, you will have accumulated a few completed cases. It is worth, from time to time, pulling out these files and reading through them. In particular, take a look at the written work you did.

This tends to be quite humbling. You will almost certainly feel that, six months or a year ago, you were terribly green and that now you’d do much better. As well as being quite good for your soul, this helps you identify areas where you can improve further. If your old letters read as unbearably pompous, then that is something to watch out for in the here and now. If you tended to waffle on without making a clear point then redouble your efforts to be clear. Think about how you’d approach the old case now, and you’ll probably get useful insights.

You’ll also probably spot some good work, which you can re-use.

While you’re at it, look at what your opponent did, particularly if they were a professional representative. While the case was going on you probably reacted to their submissions with a little bit of attitude. A sort of general feeling of ‘What tosh, and also pish’. Once the case is over, and you are less involved, you are more likely to be objective. A good opponent is one of the very best people to learn from.

If you’re new to employment tribunal practice, it can be tempting to think that the person who matters is the legally qualified chairman who sits in the middle of the tribunal table and presides over the hearing, and to overlook the other two members (the ‘lay members’ as they are called). This is a mistake. The thing to remember about the lay members is that there are two of them. That is – to labour the point – twice as many as there are Chairmen. In other words, the lay members can, and sometimes do, outvote the Chairman.

So if you are giving evidence or making submissions, try to address your answers to all 3 members of the tribunal, and make occasional eye-contact with each of them. Try to make a mental note of their names. If you want to refer to a question asked by one of them of a witness, it will be awkward (and obvious) if you can’t remember their name – and they are likely to feel overlooked. And if a lay member asks a question that makes it clear that they have misunderstood the evidence or the law, don’t snub or patronise them – just explain.

During a hearing, evidence is presented in a fairly structured way. Each witness gives evidence and is cross-examined. Witnesses tell the story in chronological order and then are cross-examined in roughly the same way.

This is a good system for hearing evidence. The logistical challenges of doing anything else would be considerable. Hearing evidence on an incident by incident basis, with witnesses stepping up and down in rapid succession, then returning when the tribunal moved onto the next part of the case would quickly create chaos.

The disadvantage of the system is that a lot of what witnesses say when giving evidence is not terribly important. Important answers can easily get lost in the crowd. Also, where more than one witness is giving evidence about a subject, the relevant evidence can get spread out and hard to follow.

Submissions, however, are an opportunity to draw the tribunal’s attention to patterns that are not clear while evidence is being given.

There are a number of ways of doing this. Below are two examples.

Collecting a single witness’ answers on a particular issue

It is notable how little Mr Smith could remember on certain key issues.

In cross examination he was asked:

• “Did you speak to HR, before writing to Ms Jones?” He replied, “I don’t know. I might have.”
• “Did you read your company’s guidance on disciplinary procedures before your meeting with Ms Jones?” He replied, “I don’t remember.”
• “Did you talk to anyone about how to run a disciplinary procedure?” He replied, “I think I did, but I can’t say for sure.”
• …

Even taking his evidence at its strongest, it is plain that Mr Smith has no clear recollection of taking any steps to establish his responsibilities in running a disciplinary procedure. His statement at paragraph 5 of his witness statement that “I had not run a disciplinary process before, but I took steps to make sure I understood what I had to do” is simply not credible.

Collecting a number of witnesses’ answers on an issue

It is apparent from the evidence of Gubbin’s managers they were confused about who was responsible for dismissing Ms Jones. Mr Smith, Mr Green, Mr Adams and Ms Watson were all asked who made the final decision.

• Mr Smith said “It was a HR issue, so Mr Adams would have done the final sign-off.”
• Mr Green said “I’m not sure, but I expect Mr Smith would have had the final say. He was her direct manager.”
• Mr Adams said “That would have been Ms Watson. She was the senior manager.”
• Ms Watson said “I was advising, but ultimately it was Mr Adams who made the decision.

The technique is the same in both examples. By extracting important parts of the witnesses’ evidence in relation to a single issue and presenting them together, the point becomes obvious.