Lawyers often talk about ‘arguments in the alternative’. It is one of those useful bits of jargon that, as well as being a handy shorthand, reveals a way of thinking about a case.

An argument in the alternative is one in the form: A is true, but if A is not true then B is true. This is not nearly as complicated as it sounds. For example:

My dismissal was unfair, because I was dismissed as a result of making a protected disclosure. This was an automatically unfair reason for dismissing me.

But, if I was not dismissed for making a protected disclosure, my dismissal was still unfair, because I nothing I had done justified being dismissed.

The claimant’s first argument is that the reason for her dismissal is automatically unfair. If she succeeds in this submission she will win the case. But, if she does not, she has a second argument, that the dismissal lay outside the range of reasonable responses. This is the argument in the alternative. If she wins on the first point it will be unnecessary, but the alternative needs to be put forward, in case the first argument fails.

The structure and concept of arguments in the alternative is useful. It is helpful to identify what your main case is, and what you say if it does not succeed.

There are a few traps to avoid.

Firstly, often you will be making a number of arguments about the same facts. For example, that a termination was both unfair dismissal and also an act of discrimination. This is not an argument in the alternative. You are not saying that the dismissal was unfair, but if it wasn’t then it was discrimination. The argument is that the act was both unfair dismissal and discrimination.

Secondly, there are good arguments in the alternative and bad ones. Sometimes this is clear cut. The criminal who says “I wasn’t there. And if I was there, it wasn’t me who shot him. And if I did shoot him, it was self defence” is not going to be believed. If you are giving evidence, and you know what happened, that is what you must say. It is extremely damaging to try to offer several inconsistent accounts.

A similar point is the danger of making too many points and detracting from your best ones. In many cases, it is more sensible to focus on a few strong points, rather than offering endless arguments in the alternative. This is often a difficult judgement to make. A useful approach is to ask yourself “If I lose arguments A, B and C, is there a real possibility I might win the case on argument D?”. If there is it is worth arguing. If, by the time you have failed with arguments A, B and C, there is no real chance that D will succeed, it is probably better to focus on convincing the tribunal of A, B and C.

In the modern world of employment litigation there is no situation where it is appropriate to use the word “aforesaid”.

This is one of those rare rules to which there are no exceptions.

An American juror (quoted in Disorder in the Court by Charles M Sevilla, publ. Norton 1992.) said ‘That this system works at all is just amazing. Because you people are not unlike children who’ve bagged a moose with a slingshot and dragged the big carcass home and drop it off outside the kitchen door, fully expecting the adults inside to take care of it, in much the same regard, sir, the two of you are going to push your evidence up here to the jury box and expect us to do the same with it.’

That was a criticism of the lawyers’ approach to a jury trial in the United States, but employment tribunals must often feel much the same.

Those who practise in employment tribunals quite often say that submissions are not very important: the case will be won or lost by the evidence. That is true up to a certain point, but if attention is not paid to the task of presenting to the tribunal in a comprehensible and digestible way the story it is being invited to believe, it will feel as if it has been left with a whole moose – skin, horns, hooves and all – and landed with the task of trying to turn it into dinner.

This is what submissions are for. Tell the tribunal which parts of the evidence are important and why it should believe your client rather than the respondent at points of difference. Tell it what the relevant law is, and show it how the law applies to the facts. Make its task easy. Present the moose in neat oven-ready joints.

When writing or speaking to the employment tribunal it is very useful to ‘signpost’ what you are going to say. The aim is to give the tribunal an indication of where you are going, so that they are able to follow you.

Young barristers are often taught to say something like “I have three submissions to make. Firstly, that the claim was made within the three month time limit. Secondly, that if it was not, time was extended by the grievance procedure. Thirdly, if the claim is out of time, then it would be just and equitable to extend time. I will now deal with my first submission, which is that the claim was within the three month time limit.”

Beginning in this way has two important advantages. It tells the tribunal what you are going to say and how you are going to say it. You should not assume that either of these things is obvious to the tribunal. And it will be easier for them to understand (and therefore easier for them to accept) your submissions if they know what you are getting at. If they do not understand where you are trying to take them, there is a real risk that an important point will be lost, because they did not understand its relevance while you were making it. Even if the tribunal is able to follow you, you are making them work unnecessarily.

The other advantage of signposting is that it makes sure that you have some clear idea of what you are going to say and what order you are going to say it in. This is valuable, particularly if you have to depart from a planned speech to deal with the tribunal’s questions.

The potential disadvantage of signposting is that it can easily become robotic. There is a real danger you will find yourself saying something like “I know turn to my second submission, on which I will make three points. My first point has two sub-points. The first subpoint raises two issues…” This is confusing, as well as sounding foolish.

This is easy to avoid by remembering that tribunals understand about signposting (they did or do it themselves as advocates and most representatives will use it) and will pick up quite subtle indications. This means that saying “Sir, we say that the claim was made inside three months and that in any event time was extended when we raised a grievance. But if the claim is out of time we say that time should be extended.” is just as effective, and less robotic, as explicitly numbering your points.

Signposting is also useful in cross-examination. It is not generally useful to signpost your whole cross-examination at the beginning, but an occasional indication of where you are going next will help the tribunal and the witness. Cross-examination should be made up almost entirely of questions, but it is perfectly proper, and very useful to say things like “I’m now going to ask you some questions about the July meeting.”

In a factually complex case it may even be useful to ask some questions for the purposes of signposting. For example, you might ask “This was a meeting between you and my client?”, expecting the answer “yes”. Then “And you were meeting to discuss the allegations of theft”, again expecting the answer “yes”. Such questions will not take the evidence further forward, but act as a quick reminder of what the meeting was about. It is important that any such questions be quick and to the point. The idea is to give a short reminder, not to rehash evidence that has already been given.

A key part of many tribunal documents is an account of what has happened. Witness statements are the most obvious example, but, ET1s, ET3s, written submissions and notices of appeal will also contain a recitation of the facts.

Unless there is a very good reason not to, this account should be given in chronological order.

Sometimes it is tempting to use a different approach. In a bullying case, you might deal with what Mr Smith did, what Ms Jones did, then what Mr Adam did. Where there are a number of different jurisdiction, you might deal with each jurisdiction in turn.

This is almost always a mistake. The first thing that the tribunal will want to do is to figure out what has happened. It is easiest and most natural for them to approach this in chronological order. Any other approach, no matter how initially attractive, is likely to become confusing and difficult.

Of course, once the facts have been set out, it is useful to discuss and analyse them in other ways. This is easily done by referring to the chronological account. For example, in a case of multiple claims you might write, in the second part of your submission:

34. The claimant complains of indirect sex discrimination, harassement and victimisation as follows:

35. Indirect Discrimination The respondent applied a rule, that all employees had to staff both morning and evening sessions, which put women, including the claimant, at a disadvantage when compared with their male collegues. See paragraphs 4-13 and 21-26.

36. Harassment When the claimant complained of this rule, her manager and male collegues belittled her work, stopped including her in social events and made frequent comments to the effect that, as a women, she was not capable of doing her work as well as the men. See paragraphs 5-20 and 31-33.

37. Victimisation After the claimant complained to management about the discrimination she had suffered, she was refused a promotion to Senior Officer. See paragraphs 27-30.

Note that the references back to the chronological account include a brief summary of what is being referred to. Writing “harassment, see paragraphs 5-20 and 31-33″ is just as confusing as taking the events out of order.

Closing submissions should normally last about 30 minutes for each day the hearing has lasted.

The most common mistakes in closing submissions are excessive length and irrelevance. It is very easy to speak at great length, while doing nothing to help your case. A short, relevant submissions will almost always be the most effective one.

Like most similar maxims this rule should be broken regularly. Some short cases deal with complex legal points that will require extensive discussion; some long cases are best ended with a few sharp, pithy words.

Many employment cases involve disputes about calculations, often relating to sums of money, but also other issues, such as hours worked or weeks employed.

Normally the dispute is about what calculation needs to be made. For example, the claimant will say that he is entitled to 3% commission on his sales, while the respondent claims he is entitled to 2.4%.

Surprisingly often, however, the dispute comes down to a difference in the result of the calculation. For example, the parties agree that 3% commission is owed and that it is on the invoices to be found from page 70 to 77 in the bundle, but cannot agree a final figure. The claimant claims he is owed £3,544, while the respondent insists it is £2,898. The difference is purely arithmetical and it seems obvious that one party must have got its sums wrong.

In an ideal world, such errors would not occur and, if they did, would soon be resolved amicably. In this, less than ideal world, the question arises, should an advocate cross-examine a witness on his maths?

The authors believe not. While the maths may be a question of fact, it is not one that is likely to be illuminated by careful cross-examination. Instead, the sums should be set out in the submissions and the tribunal can, if necessary, do its own arithmetic to check them.

It should be noted, however that this is not necessary the general view and that the authors are aware of at least one tribunal who took the position that a witness should be taken through his calculations. The most sensible approach is to seek guidance from the tribunal, by saying something like “Sir, there is an issue regarding the calculation of this figures. It comes down to a question of arithmetic. Unless you think it would be helpful for me to take the witness through the sums in detail, I think it can be dealt with in submissions.”

The final point to note is that, in an appropriate case, the tribunal’s own arithmetic can be challenged by way of appeal, see Mears v Lloyd Green & Co. for an example. In most cases, however, a tribunal’s mistaken calculation is more appropriately dealt with by applying for a certification of correction or a review.

Advocates and tribunals do disagree. In many cases that disagreement will only become apparent once the tribunal gives its judgment, but the tribunal will also often enough intervene in the course of the hearing to say something to the effect “One moment, Mr Rhodes, that is just not right”.The tribunal will very rarely make this sort of comment about a central issue that they are being asked to resolve. A tribunal dealing with an unfair dismissal is unlikely to interject with a comment that, in their opinion, the dismissal was perfectly fair. These are matters for their reasoned judgment. But it is quite common on individual points of submission. For example, if a representative says “The law is X”, the Chairman may say “No, surely it is Y.”

This can be disconcerting, but is actually a good thing. By raising the issue the tribunal has given an insight into their thinking. If they had remained silent the advocate would have continued, unaware that he had lost the tribunal several steps back. By indicating that they disagree, the tribunal has given him the opportunity to take action.What that should be will depend on the situation, but the following are some suggestions:

Consider that they might be right.

We all make mistakes and sometimes the tribunal will be accurately pointing out that you have made a error. In such cases the only thing to be done is to recognise that you have gone wrong, accept it and move on.The conventional formula in this situation is something like “Sir, that must be right. I’m grateful.” Then “In that case, let me move on to…” Quite what is said is unimportant. The aim is to accept the error and get off the subject as quickly and as smoothly as possible.Such moments are embarrassing and disturbing. The thing to remember is that you are almost certainly making more of the incident than anyone else is. Provided the slip is recognised and accepted it will very rarely do any harm.

Defend your view

The easiest way of persuading the tribunal you are right is to take them to some convincing evidence. If the disagreement is over the respondent’s disciplinary policy, take them to it and explain your view. If it is over the detail of a statute, ask them to turn to Butterworths and show them you are right.Be polite and clear.

Rephrase the issue

Sometimes it just helps to say the same thing in a different way. This is particularly the case if the problem seems to be that the tribunal hasn’t understood your position.

Go back a stage

Sometimes problems arise because the representative has moved over a point too quickly or assumed that something is in the tribunal’s mind when it isn’t. In such cases it is useful to back up and restate the reasoning that led up to this point.

For example, the claimant’s barrister is making submissions on why the respondent was in breach of the grievance procedure. He assumed that the tribunal had understood that the claimant’s case was that this was the applicable procedure. The tribunal, having misunderstood some of his earlier remarks say that, in their view, the dismissal and disciplinary procedure applies. The only way to deal with this is to go back and explain from the beginning why the grievance procedure applies.

Ask questions

There is nothing wrong with asking the tribunal questions and this can be very useful in establishing exactly what the disagreement is.

For example, in an unfair dismissal case the Claimant is arguing that, because an important witness was leaving the country it was unfair that the disciplinary hearing was not heard before the witness left. The Chairman suggests that procedural unfairness in an unfair dismissal case will not render the dismissal unfair, if the respondent can show that the dismissal would have happened anyway. The Claimant asks “But I thought not if there is a breach of the statutory procedure?”, and the Chairman agrees this is so. The issue clarified, the Claimant is able to point out that he says that there was a breach of the statutory procedure, because the statute says the process must be carried out without unreasonable delay, and in the circumstances the delay was unreasonable, because although it was short it meant the witness was unavailable.

Questioning the tribunal must, however, be done with a good deal of tact. It is important to make clear that you are asking questions to understand what the tribunal is saying, not as a way of making points. No tribunal will react well to any hint that they are being cross-examined.

Try judo

In some cases, although you think the tribunal is wrong, their position will not be deterimental to your case.

For example, say that your client has been suspended for incapacity, pending a medical assessment. You say that the respondent had no power to suspend him, because, under the contract, suspension is restricted to cases of gross misconduct. The tribunal disagrees, pointing to a section of the disciplinary code that might arguable be interpreted to allow incapacity suspensions. Although you think they are wrong, the section they are referring to also lays down strict processes for such suspensions and requires that a senior manager makes the decision. Neither requirement has been followed.In such circumstances, depending on the case, it may be tactically wise to quietly drop your submission that there was no power to order suspension, in order to concentrate your fire on the point that it certainly wasn’t exercised properly.Such decisions have to be made carefully. The ultimate aim is to win the case, not win every point. An advocate who does not adjust their submissions to the tribunal’s view is not serving their client well. But neither is one who makes sure never to disagree with the Chairman.

Move on

If, having done your best to convince the tribunal, they are just having none of it, there is nothing to be gained, and much to be lost, by prolonging the argument unnecessarily.

In these circumstances, something like  ”Madam, I think I’ve said all I can on this point, may I move on to…” is often useful.

Quite often, the Chairman will come to a similar conclusion and say something like “I think I understand what you say here. Perhaps we should move on.” The advocate will need to make a quick decision either to accept this steer from the Chair or to try to continue with their argument. Continuing in the face of a suggestion to move on will be unpopular and should only be done if there is a real chance of persuading the tribunal

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But, if necessary, make sure the tribunal makes a decision

Sometimes it will be necessary to challenge the tribunal’s view by appealing. For this to be done the tribunal will need to make a decision that can be appealed. There is a danger that, for some sorts of decision, the tribunal will express a view on what their decision might be and the advocate will bend to this, rather than the tribunal actually making the decision.

For example, in cross-examination, the claimant wants to ask questions on a particular subject. The tribunal questions whether they are relevant (and it seems pretty clear that the Chairman thinks they are completely irrelevant). The advocate, not wanting to annoy the Chairman, moves on to something else. Later the client wants to appeal on the basis that the tribunal stopped a relevant line of questioning. This will be probably be impossible, because it was the advocate, not the Chairman, who stopped the cross-examination.

If necessary, it may be useful to say something like “Sir, I just want to be quite clear. Are you making a ruling that…?” 

New advocates are often told not to say ‘umm’. This is good advice.¹ Unfortunately, many replace their ‘umms’ with similar habits. It is common for representatives to start sentences with a throat clearing phrase such as:

• In my submission…
• I suggest that.
• What I say is…

Such phrases add nothing and will only distract from what you are saying. At worse they might become an annoying tick.

A particularly dangerous phrase is ‘My client’s case is…’ or ‘My client’s instructions are…’. The effect, if not the intention, is to separate yourself from your client. Instead of saying ‘This is what has happened’, you are saying ‘This person says that this is what happened, but I’m not sure’. This is not good advocacy.

Oddly, throat clearing phrases are as common in written submissions as they are in oral advocacy. They should be eliminated there too.

1. Although the odd ‘umm’ does no harm and there is no need to become neurotic about it