INTRODUCTION TO THE EMPLOYMENT TRIBUNAL JEFFREY JUPP 7

INTRODUCTION TO THE EMPLOYMENT TRIBUNAL JEFFREY JUPP 7 BR

Introduction - know your tribunal ● Jurisdiction ● Powers ● Procedure

The preliminaries • Early Conciliation • Time limits • Pleadings

ET 1 & 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.

ET 3 & 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.

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 whethere was TUPE transfer.

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.

PH: Case Management: The Agenda

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

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.

The Bundle • Compile it an order with continuous pagination starting at p 1 – 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.

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.

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.

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.

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 Li. P does not put his case – put it yourself in re—examination.

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.

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

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.

CONCLUSION JEFFREY JUPP 7 BR