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”.