Tagged: submissions

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Looking back

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.

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Don’t forget the lay members

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.

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Drawing out the evidence

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.

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Appeals to authority

Litigation is about convincing somebody of something.

One way of doing this is to tell the person you are trying to convince what somebody else thinks.

In litigation this works well, provided that ‘somebody else’ is the tribunal. A respondent who is refusing to cough up documents may well be convinced by a tribunal order.

It does not, however, tend to work on the tribunal. Saying, or writing, something like ‘My local CAB says that the case should be postponed’ or ‘I’ve talked to a lawyer and he says my dismissal was unfair’ is unlikely to make much of an impact.

This has two consequences. Firstly, don’t use this sort of technique on the tribunal. It is likely to be a waste of time.

Secondly, when getting advice, it is important to dig a little below the surface. If, instead of saying the case should be postponed, the CAB explains that it should be postponed because of the large mass of documents served, at the last minute, by the respondent, you have something to go to the tribunal with.

Solicitors actually do something very similar, but they say ‘Counsel has advised…’ or ‘We are acting on counsel’s advice…’ This is not a great deal more effective. Tribunals see a lot of barristers and tend to take counsel with a pinch of salt.

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The tripod

One of the difficult things about running a tribunal case for the first time is the uncertainty about what needs to be done before the hearing. The first step – putting in your ET1 – is fairly obvious, but after that it is easy to get overwhelmed.

If the tribunal has made detailed case management orders, this makes things simpler. If you follow them, you should do most of what you need.

Otherwise, it is worth remembering that there are three main things you need to sort out before you reach the tribunal. This is a gross simplification, but it is worth bearing in mind if you are uncertain what to do next.


When the hearing starts you want to have an agreed bundle of documents, containing all the relevant evidence.

Normally, this means you need to do two things: discovering and bundling.

Discovery is the process of figuring out what documents you have; then asking the respondent for documents they have, and getting a tribunal order if necessary.

Bundling is the process of drawing up an index of the relevant documents (not the same thing as all the documents), putting them in chronological order and paginating them. Paginate is a fancy lawyer’s term for writing page numbers on them. Then you have to agree the bundle with the respondent.

Witness Statements

All of the people who are going to give evidence should have prepared a witness statement and these should be exchanged with the respondent.

Know what you are going to say

Basically, you need to be ready to do two things: cross-examine witnesses and make submissions.

What this will involve will vary from case to case. An experienced advocate, dealing with a simple case, might just jot a few points on a sheet of paper. On the other hand, in a complicated case, or if it will be your first time in a tribunal, you will want to do a lot more.

A good starting point is a list of issues the tribunal will need to decide. Once you have that, you can expand it into a list of things you want to ask each witness about and another list of areas you need to address in submissions.

Detailed lists of questions get a bad press in legal circles. The potential disadvantage is that they may turn you into a robot – asking one question after another in a monotone, paying no attention to what the witness says. But this can be avoided with a little care and attention.

The advantage of detailed lists of questions is that they make sure you do not miss anything and allow you to plan, in detail, the order and approach of your questions. For beginners, this is particularly valuable.

You should also consider written submissions. In complicated cases, these are almost vital. In a simple case, the tribunal will get much less advantage from them. But this does not mean they are not useful. By writing down, in full, what you want to say, you will make sure you have the issues, the evidence and your arguments thoroughly worked out.

Unfortunately, you will normally not be able to complete your written submissions before the hearing starts. This is because you will not know what evidence is going to come out during the hearing. The best approach is to leave gaps in your submissions, where this evidence can be slotted in later.

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Death by post-it

If you are represented in tribunal, you will often need to communicate with your representative. A lot of the time this can be done by discreet whisper. But this is impossible when your representative is in the middle of cross-examination or submissions. Then the usual method is passing them a note.

Notes from your client during the hearing can be very helpful – but too many can feel like sabotage. So it is worth some thought. Advisers can help themselves by discussing this issue before the hearing.

The tension is between providing useful information, and distracting your representative. They are doing something difficult and complex that requires their full attention. If you interrupt a lot you will break their train of thought, and pile on the stress. The result will be to make them less effective. On the other hand, you may have information or insight that will make all the difference.

The key is to know when to intervene and how.


Bear in mind what you representative already knows. Imagine that you have a wages case, and you say that your employer, Mr Smith, promised you a 5% raise from January 2008. If Mr Smith gives evidence that such a conversation never happened, there is no point in passing a note saying “He’s lying”. Your representative knows that he is, and will be busy trying to prove it.

On the other hand, Mr Smith may say something like “I wouldn’t have discussed that sort of thing. I left that all to Ms Jones, the store manager”. You may know that Ms Jones was on her honeymoon during January, while your representative does not. In that case a note letting him know will give him some valuable ammunition.

It is rarely sensible to try to give general advice about how to do something. For example, you may think that it would be better if your representative dealt with matters in a different order than he is doing. But it will be quite impossible for you to explain why and for your representative to change course during his submissions. Trying to do so will just distract him.

Bear in mind that you only have partial knowledge of what your representative is thinking. If he does not seem to be addressing a point, it is possible that he’s unaware of it, or has forgotten it. But it’s also possible that he’s spotted a problem with the point that you haven’t, or noticed that a tribunal member was reacting badly to it; or even that he thinks it’s such a good point that he’s postponing it to the end of his submissions or cross-examination where it will have most impact.

Try to take some account of how important a point is. What you’re trying to achieve by intervening is to make your adviser’s cross-examination or submissions more effective. Will the benefit be worth the cost in terms of distraction? Can your point wait until the next break?


Write short notes. This is important for two reasons. First, your representative will find it easier to understand and use a short note, rather than a long one. Secondly, you want to finish your note before he moves on. Even the best point will be less telling if your representative has backtrack to a point he left five minutes ago.

Write legibly. This is a good moment for large round primary schoolteacher writing – even if in fact you are a doctor.

Don’t shout. In other words – DON’T WRITE IN CAPITALS. It is surprising how much more distracting and stressful it is to receive a note written in capitals, because it does feel as if you are being shouted at.

Be prepared. Bring a pack of post-its or small pieces of paper so that you have something to write on that can be easily passed across – a lot of noisy ripping of pages won’t assist your representative’s concentration either.

Another way of dealing with this sort of issue is to agree that, at the end of cross-examination or submissions, your representative will check with you whether there is anything else that need to be covered. This allows you to deal with issues in a more organised way. If you do this, it is sensible to keep a running note of issues that you might need to raise. But be brief: while the tribunal will be happy to let you have quick whisper, they will not normally allow a prolonged conversation.

Finally: don’t take it personally if your adviser reacts quite shortly to your interventions. Under the pressure of a hearing, there often just isn’t time for the standards of courtesy you’d expect normally, and communication is likely to be reduced to the bare essentials. It doesn’t mean your adviser is irritated: it just means they’re in a situation where they have to grab the bits of information they need from you and then shut you up.

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Avoid telling the tribunal what they ‘must’ do

This is just a bit of useful psychology. We all tend to bridle slightly when told that we have no choice. So saying to the tribunal:

  • You must postpone this hearing.
  • You have no choice, but to order these documents be disclosed
  • It is impossible not to make a finding of unfair dismissal

is likely to put their back up to no good purpose. Human nature means that their first thought may well be “Oh I can’t, can’t I?”

It is possible to go too far the other way. It is no good submitting that, just possibly, the tribunal might feel that the hearing could usefully be postponed, but obviously it’s up to them. This does not carry conviction.

The way round this is just to say what you want simply. This is one of the rare occasions when the passive tense is useful.

  • The hearing should be postponed.
  • These documents should be disclosed
  • Mr Jones has been unfairly dismissed

This tells the tribunal what you want, with conviction, without suggesting they have no choice.

Occasionally, you may end up in a situation where you really do have to tell a tribunal that something is impossible. For example, if the respondent wants to make a counter-claim, but you have not raised a breach of contract claim, they are not allowed to do so by the rules. The tribunal really does not have a choice.

Obviously, in that situation you must tell the tribunal so. But, again, it is sensible to do so tactfully. For example, saying “the rules do not permit counterclaims, unless the claimant has raised a contractual dispute” is better than saying “you cannot hear a counterclaim in this case”.

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Tribunal math (Time)

Or, in English, the time you spend on an issue in tribunal should be proportional to the importance of the issue and its complexity.

The amount of time you spend on something will send a message to the tribunal. The more time you spend on a point the more important you suggest that it is.

So, all else being equal, you should spend the most time on your important points.

However, all else is not equal and you will have to take account of how complex your points are. A difficult issue takes more time to deal with. And if what you have to say is short and simple it does no good (and normally does harm) to keep talking once you’ve made the point.

It is sometimes worth flagging up exceptions to the general rule. For example you might say “Sir, my next point is really the key to this case, but it’s a simple point and I will be brief.” Similarly, you might say “Madam, the contractual point is rather difficult and I’m afraid I’m going to have to spend rather a lot of time on it.”

Update: A reader points out that, arguably, the equation should be importance multiplied by difficulty; rather than importance divided by difficulty. This is correct – unless difficulty is expressed as a number greater than zero but equal or less than 1. This may be a post event rationalisation, but it preserves the original formula.

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Feeling the strain

Some litigants and lawyers act and write as if they’re just a little over caffeinated.

When they object to something they do so ‘firmly’ or ‘vigorously’. When they make submissions they do so ‘passionately’ or ‘strenuously’. They have made ‘heroic’ or ‘valiant’ efforts to comply with the tribunal’s orders.

A little calm goes a long way and is normally more convincing. Quite possibly the only bit of legal advice you should take from Tom Cruise’s character in A Few Good Men is his line on strenuous objections.

“I strenuously object?” Is that how it works? Hm? “Objection.” “Overruled.” “Oh, no, no, no. No, I STRENUOUSLY object.” “Oh. Well, if you strenuously object then I should take some time to reconsider.”

If you do need to emphasise the seriousness of something it is better to explain why it is serious than tell the tribunal it is.

For example, say that the respondent has been uncooperative in producing witness statements. To make clear that you have done everything you could you might say:

On the 1st May I rang Ms Jones to discuss exchange of witness statements. I was not able to reach her and left a message. On the 2nd May I rang again. I spoke to her secretary and was told that Ms Jones would ring me back that afternoon. She did not.

The following Tuesday, the 6th, I rang again. This time I reached Ms Jones. She told me that she could not speak to me at the moment. I said that I would send her an email. I sent one later that day. I reminded her that there had been an order to exchange statements on the 7th. I asked her to confirm that they were in a position to do. I suggested that we do so either by fax or email. I included my details and asked her to suggest a convenient time.

I did not get a reply and could not reach her, or her secretary, by phone on the 7th.

I then wrote a letter, pointing out that the deadline for exchange had passed and asking her to contact me urgently. I sent this by recorded delivery, which confirmed it was received on the 8th. I also sent it by email. I did not get a reply.

I made more phone calls on the 8th, 9th, 13th and 15th. Each time I left a message, but these were not returned.

This is far more convincing that any number of ‘strenuously’s.

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Often, in written submission or oral advocacy, you will need to quote from another text. It might be a document from the bundle or from a piece of case-law.

Most documents will be far too long to quote in full. You should trim them to what is relevant and useful. After all, the full document or case will also be available to the tribunal.

What you must not do, however, is selectively quote to give a misleading impression.

For example, an EAT case may say something like:

Such and such is an attractive and powerful argument.

This is a great quote if you want to argue that ‘such and such’ is true.

If, however, the court then went on to say:

Having carefully examined it, however, we have concluded that it is completely wrong

You absolutely must not quote the first paragraph, but leave out the second. Not only is it dishonest, it will not work. Your panel was not born yesterday. And one of the most effective submissions in a tribunal is one that begins “Let me read you the paragraph just after the one my colleague referred to, so we can look at what he left out”.

Unfortunately, while dishonesty is simple to avoid, it is surprisingly easy to do this accidently.

Many judgments, for example, set out a general rule, but then go on to discuss the limits of that rule or circumstances where it does not apply. It is easy to focus on the general rule, and miss what comes after.

This is something to be alert to. If there is a slight reversal of the quote you want to use, it is much better to deal with it up front. For example:

This rule was set out by the EAT in Smith v Jones at paragraph 17:


The tribunal went on to discuss circumstances in which this rule should not be applied:


For the following reasons, these exceptions do not apply here…

By identifying and dealing with the point you have secured two advantages. Firstly, there is no possibility that the tribunal will think you were shading the truth. This disarms a potentially dangerous attack from the other side.

Secondly, you have dealt with the point on your own terms. If you allow it to be raised by the other side you will be on the defensive. By raising it yourself, you get the chance to discuss it before your opponent; frame the issue and get your retaliation in first.