Navigating the Employment Tribunal: Essential Guide for Claimants and Respondents

1. INTRODUCTION TO THE EMPLOYMENT TRIBUNAL JEFFREY JUPP 7BR

2. Introduction - know your tribunal ● Jurisdiction ● Powers ● Procedure

3. The preliminaries • Early Conciliation • Time limits • Pleadings

4. ET1 & Grounds of Complaint • Identify the claims at the outset. • Identify the C’s role and describe R’s business. • Tell the story in brief chronological sequence of short factual paragraphs. • Use sub headings to signpost: ‘the Claimant’s disability’; ‘the Protected Act’ etc. • At the end go through each claim by sub heading. • Refer to any breach of the ACAS Code.

5. ET3 & Grounds of Resistance • Indicate whether if all claims are denied or some admitted. • Start by setting the scene. What is R’s business? How many people does it employ? What does it do? Explain C’s role. Explain any relevant management structure and personnel. • Tell R’s story in a series of short factual paragraphs. • Go through each of the claims and respond to each element. • Identify the reason for the dismissal. • If relied on deal with contributory fault.

6. Case Management & Preliminary Hearings • In small short cases standard directions listed for hearing. • In more complex cases one or more PH. • First PH will be case management. • Second PH to decide an important issue such as ‘disability or whether there was TUPE transfer.

7. PH: Case Management prep • You need to know: • What the issues are – in detail. • Are there any preliminary issues to be dealt with– EG disability or TUPE. • Where are you with regard to disclosure - how long will it take – if longer than usual, why? • Is there a schedule of loss and if not when will you have one? • Which witnesses are you calling and why are they needed? • Do you need expert (usually medical) evidence and if so why? How long will it take to get records. • How long will the hearing take? • Are any special requirements req’d EG– disability or interpreters for the hearing? • Who will do the chronology and cast list.

8. PH: Case Management: The Agenda

9. PH: Agenda • Liaise for completion. Should only have one Agenda which both parties have completed - EG:

10. PH: Preliminary Issues • Will evidence be required? • If so deal with time for service of evidence and relevant documents. • If only on submissions then deal with exchange of skeleton arguments.

11. The Bundle • Compile it an order with continuous pagination starting at p1 – usually: • Pleadings. • Orders/Correspondence with ET. • Contracts of employment and Job Description. • Relevant documents in chronological order. • Relevant extracts from policies. • Remedies documents. • Do not: • Include duplicates. • Include all pages from policies if not relevant. • Forget the contract of employment.

12. Witness statements • Do: • Cover all the essential facts from first hand knowledge. • Structure the statement so it reads chronologically. • Identify the key documents by page reference (do not quote extracts). • Do not: • Give the witnesses opinion. • Argue the case. • Refer to legal principle. • Be rhetorical. • Guess or speculate.

13. The Hearing: Preparation • Always prepare a chronology. • Consider an Opening Note. • Consider a reading list of essential documents. • Be on top of the issues; the facts and the law. • Plan your cross examination – • Is a witness likely to be helpful or at least not damaging; • Does the witness need to be challenged – how will you put your case • Advise your clients about the process – when they are in the ET the tribunal will see everything they do.

14. The Hearing (1) • Who goes first? • Will remedies be dealt with after liability? • Advocacy starts the moment you walk into the ET. • Addressing the Tribunal. • Do not get on the wrong side of the ET it rarely ends well. • Try not to be unreasonable – it reflects on your client. • When things go wrong – and they will – keep calm – carry on. • Do not interrupt the judge or the other side. • Do not take every single point good or bad • Write closing submissions.

15. The Hearing (2): Witnesses • Witness preparation (do not coach). • Ensure they have read their statement and the essential documents. • Do they need to correct their statement? • How does the witness want to take the oath or affirm? • Maintain silence when the oath is being taken. • Witness statements usually stand as evidence in chief – very few supp Qs permitted. • Do not bully or harass witnesses in Cross-x – it reflects on your client. • If a LiP does not put his case – put it yourself in re—examination.

16. The Hearing (3) Other practical points • Arrive early – you will need every minute. • Take note of names and job titles. • Advise your clients – you need to appear as a team; professional and focussed – no smirking or grimacing. • Be prepared for last minute issues – EG late disclosure • Have tissues – witnesses get upset. • If the judge is rude – try not to take it personally. • At lunch take a few minutes away from your clients to compose your thoughts. • Take a decent note – particularly of ex tempore judgments.

17. Settling claims at the ET ● Consent order. ● Stay pending payment. ● Dismissal on withdrawal – now automatic under rule 52 unless right reserved. ● Think about confidentiality.

18. Costs • Costs warning letters – use with caution. • Costs do not generally follow the event. • When costs are awarded. • Applying for costs – you will need an application plus a schedule. • Bear in mind when considering settling.

19. CONCLUSION JEFFREY JUPP 7BR