If your hearing bundle runs to more than one volume, divide the volumes at round numbers if you sensibly can – so, for example, don’t put pages 1-437 in volume 1 and pages 437-623 in vol. 2. Put pages 1-400 in vol. 1, and 401-623 in vol. 2. The more volumes you have, the more this will help everyone find their way around.

But don’t stick to round numbers at the price of daft divisions, obviously. If there’s a two-page dismissal letter starting on page 400, you’ll want to find the second page next to it – not at the beginning of vol. 2 of the bundle.

There is a tendency for advocates, consciously or subconsciously, to divide documents and authorities between ‘mine’ and ‘theirs’. ‘My’ documents are those that come from my client, or are helpful to him. ‘Their’ documents are those that come from the other side, or that are helpful to them.

This is natural enough, but it is a mistake.

In most cases it is impossible to divide all the documents in this way. At least some will contain material useful – or harmful – to both sides. If you try to divide them up, you risk missing the bits in ‘their’ documents that help you. You will also miss the bits of ‘your’ documents that help them. This will hamper your ability to present the case.

This point is also true of authorities. Often a party will cite an authority that actually helps the other side. Sometimes this is because the advocate has a duty to bring up a relevant case, even though it doesn’t help him. But it happens surprisingly often in other circumstances as well. Similarly, often an authority will be broadly helpful to you, but contain a limitation or warning that is not. If so, you need to spot it, so that you can deal with it.

Daleside is a recent EAT decision on costs.

Mrs Mathew brought a direct race discrimination case, along with claims for unfair dismissal and wages. The key part of the race discrimination claim was an allegation that a manager had called her a ‘black bitch.’ The manager denied it, and the tribunal believed her.

Daleside applied unsuccessfully for its costs, and appealed to the EAT.

The EAT held that the race discrimination claim had been based on a ‘deliberate and cynical lie’. This was not explicitly stated by the tribunal, but was inescapable given their findings. It was impossible for Ms Mathew to have mistaken what her manager had said. The inevitable conclusion was that she had made up a serious allegation of racial abuse. The EAT decided that the tribunal had been wrong to refuse costs, since bringing a claim based on a lie was unreasonable conduct.

This is a difficult decision, because it highlights a paradox in the costs regime in the employment tribunals. One of the advantages of the employment tribunal is that it is an accessible forum in which costs are rarely awarded. This is important to provide employees with access to justice. If costs were routinely awarded to the winning party, claimants who couldn’t afford to risk having to pay their employers’ legal costs would be deterred from enforcing their rights.

On the other hand, the EAT’s logic is difficult to attack. To bring a claim based on assertions that you know to be untrue must be unreasonable. It’s hard to imagine what else it could be.

Of course, not all cases involve deciding that one party is lying. Tribunal cases can be broadly divided into two types. The first type are those where the basic facts are agreed and the argument is about motives, reasonableness and consequences. Many unfair dismissal claim fall into this group. The parties agree that the the claimant was in a fight and that the employer dismissed him. There may be considerable dispute about the details (the employee says that he was provoked, the employer denies this) but most of the case will be about whether it was reasonable to dismiss in these circumstances.

The second type of cases are those where the basic facts of the claim are disputed. A lot of harassment claims (including Daleside) fall into this category. The employee says he was bullied; the employer says that he was not. Their accounts are mutually exclusive and the tribunal has to decide what happened.

In the first type of case the tribunal rarely has to decide that one party is lying – and tribunals will normally avoid making such a finding unless it is necessary. But in the second, they have to. So in this type of cases, when a claimant loses, he may face a costs application on the basis that his claim was founded on lies.

Logically this makes sense. But real cases are rarely so cut and dried. They are decided on the balance of probabilities and, often, it can be difficult to find the truth. Tribunals probably get it right more often than they get it wrong, but nobody believes they are perfect. Even if they are right 95% of the time, a 5% error rate potentially means a lot of unjustified costs orders.

It is difficult to tell whether Daleside will result in a significant change to the tribunals’ approach to costs. I suspect that it will not. The idea that costs are unusual is well entrenched. Practice is likely to change slowly, if at all. But applications on a similar basis to Daleside are likely to become more common.

If you face an application like this, how do you resist it?

The decision on costs is a two stage one. The tribunal must first consider whether they have jurisdiction to award costs. In this context this means they must decided whether the case was brought unreasonably. Then they must decide whether to award costs. This second stage was not explored in Daleside and may even have been overlooked.

The first argument against a cost order relies on the principle that costs orders should be rare and that tribunals should not award them unless they can be reasonably sure that a claim was not brought in good faith. This can be put in two ways.

At the first stage, the tribunal should recognise that their approach to costs should be different to their approach to liability. On liability they are asking: has the Claimant proved his case? In relation to costs they are asking: can the Respondent show that the Claimant has acted unreasonably? At the costs stage the respondent should therefore be able to point to some clear evidence of wrongdoing, rather than merely relying on the Claimant’s failure to prove his case. A failure to prove one thing does not necessarily prove the reverse.

A similar argument can be advanced at the second stage. At this point the argument is essentially a policy one. It is that, since it is important that tribunals remain open to claimants without much money, costs orders should be rare. The tribunal should therefore to exercise its discretion to award costs with restraint, in the absence of clear evidence of wrongdoing. The desirability of punishing a lying party and recompensing the other side should be balanced against danger of hampering access to justice by discouraging other claimants.

It is important to realise that neither of these arguments is straightforward. Like many clever legal arguments, they are likely to work best where the tribunal is already convinced of the underlying merits of your position.

Therefore, you should be ready to fall back on the final argument. This is the more conventional one based on means. Many claimants are simply not in a position to pay a costs order if one is made, and the tribunal may take means into account both when deciding whether to make an order and when setting the amount. In any case where costs might be sought, and means are an issue, employees should be ready to present the tribunal with their financial position.

Daleside Nursing Home Ltd v Mathew

Pompous writing is very common among lawyers, and if you aspire to be a lawyer or to be taken seriously by lawyers it can be tempting to fall into the same bad habits. But it’s not necessary: the clue is in the word “bad.”

For example, solicitors often start letters with something like: “We write further to our letter of 15 May 2009 in relation to this matter.”

Phrases like this are just junk, cluttering the message of the letter. Let’s consider it in sections:

We write

Obviously they write! It’s a letter, after all. Did they think you might mistake it for a semaphore message if they didn’t start by telling you they were writing to you?

further to our letter of 15 May 2009

If they wrote previously on 15 May 2009, it’s obvious that this letter is ‘further’ to that letter. But what does that tell you that you didn’t know already?

in relation to

In passing – what’s wrong with “about”?

in relation to this matter

Telling you what is the ‘matter’ that is the subject of the letter is what the heading at the top of the letter is for; there’s no need to say it again in the first sentence.

It is helpful to open, “Thank you for your letter of [date],” so that the recipient knows you’ve had their last letter and that is what you are responding to. “Thank you” is just polite: no-one will think it means you are actually grateful for their letter – so there’s no need to fall over your feet distancing yourself from that idea with “I acknowledge receipt of…”

But this isn’t really a post about those two particular phrases. The point is that the message of a letter – or any other piece of writing – will be clearer if it is not all bundled up in pompous waffle.

The Ministry of Justice has just published its research into employment tribunal awards and whether they are being paid. They surveyed 1,002 successful claimants.

It makes interesting, if depressing, reading.

39% had been paid nothing. 8% had been paid something, but less than the amount awarded. Only 53% had been paid in full.

This is a grim statistic, but it is worth putting it in context. Of those who had not been paid, only 36% had gone to the county court. In other words, nearly two thirds of those who had not been paid had failed to take enforcement steps.

Enforcement is not a silver bullet. It can be frustrating and is not always successful. But, if you have got through the tribunal process successfully, you should not give up lightly. The hardest work is behind you.

‘How to start enforcing a tribunal award’ explains how to begin.

Ministry of Justice Research Series 9/09

If you are cross-examining a witness, don’t comment on his answers.

That needs a little explanation. You can ask follow-up questions of the sort “But that makes no sense, does it, because…?” You can contradict: “But if you turn to page 247 of the bundle, we can see that that can’t be true?” You might even want to summarise the last few answers for impact: “So you’d seen Chris crying at her desk more than once in the last week, you knew she’d recently been off with stress, you were aware her GP was asking for her to be given a less pressured role, you’d read the OH report, you knew the Productions Team was under exceptional pressure, you knew the team leader had the reputation of a bully – and knowing all that you thought transferring her to Productions in the final month before the launch was reasonable?”

In a sense those sorts of questions are comments, but they are comments of the kind that call for an answer, and so a legitimate part of cross-examination. The point is to put the witness on the spot.

But comments like “We don’t agree with that,” or “We’ll have to agree to differ there,” or “That’s just not true!” don’t put the witness on the spot at all – you’ll either get a shrug in response, or a bit of panto of the “oh yes it is!” – “oh no it’s not!” variety. Neither takes the case any further forward.

This may seem obvious, but it is surprising how often it gets forgotten.

The problem seems to be a failure of communication between advisers, for whom the process is routine, and witnesses, for whom it is normally a complete one-off. Advisers think it’s obvious that the witness must be satisfied that the statement is all true: after all, it is a document that says at the top ’statement of Joe Bloggs’ and has a place at the bottom for Joe Bloggs to confirm that the statement is true and sign it. Of course Joe Bloggs won’t sign it unless he is convinced that it is true.

But of course nothing of the sort. The currency has been devalued. An employment judge might throw up his hands in horror at the idea that a witness has sworn to a statement that, actually, he hasn’t bothered to check properly – but the same employment judge has undoubtedly ticked boxes confirming “I have read and accept the terms and conditions” half a dozen times in the last month, when what he really meant each time was “I can’t be bothered to read the small print, but I’m willing to accept it on the gamble that there’s nothing too outrageous in it.”

A witness statement is completely different. If you are a witness, you mustn’t sign your statement unless the confirmation at the end that it is true really does mean what it says. If your adviser has drafted something that puts an inaccurate ’spin’ on what you’ve told them, make them correct it. If they’ve stated something as definite that you’re not sure about, change it so that the statement makes it clear you’re not sure. Putting your evidence in writing in a clear and logical order is your adviser’s job, if you’re lucky enough to have one; but making sure your evidence is correct is yours, and no-one else’s.

Advisers can sometimes cross the line between presenting your evidence clearly and persuasively (which is perfectly legitimate) and telling you what to say (which is not). If there’s a tussle over your evidence, it’s one you need to win; and if you come under explicit pressure to give evidence that is not true, sack your adviser.

The best way of grasping how important this is is to understand a bit about what it’s like to be cross-examined. Quite often there’s a sequence of questions that goes something like this:

Q: You have just sworn that your statement is true haven’t you?
A: Yes.
Q: And you approved and signed it a couple of weeks ago?
A: Yes.
Q: You wouldn’t have signed it without checking carefully that it was true?
A: No: [Actually - for the reasons given above - this is nonsense. All the same, 99 witnesses in a hundred will give the 'right' answer to this sort of question.]
Q: And presumably you’ve read it again recently?
A: Yes.
Q: So if there was anything in it you weren’t confident about, you’d have corrected it before you swore to the tribunal that it was true?
A: Yes.
Q: So when you say at paragraph 12 of your statement that it was Tuesday 5 May that Sheila shouted at you in front of the whole office, you’re sure that’s right?
A: Yes.
Q: And you’d remember that clearly, because it was the first day back after the Bank Holiday?
A: Yes.

This is ominous. The respondent’s representative wouldn’t be working so hard at confirming your evidence about the date on which you say Sheila shouted at you unless she was pretty sure she could prove you wrong. Her aim is to prove you a liar, rather than merely mistaken or careless – hence the emphasis on how sure you are of this bit of your evidence. You are almost certainly about to be taken to a page in the bundle that proves – or seems to prove – that one of you wasn’t in the office at all on Tuesday 5 May.

That’s why it is so important that your statement is your statement. Read the first sentence in your statement, and imagine the respondent’s representative taking you to it and asking you “Are you sure of this?” If the thought gives you a sick feeling, delete or rewrite the sentence. Repeat for every sentence in your statement. When you’ve finished, and made all the changes you need to make, you can sign your statement: not before.

The rule about putting documents into chronological order also applies to witness statements. Begin the story at the beginning and go on to the end. This makes it much easier for the tribunal to understand what you are trying to say.

Finding out the current rate of interest to be applied to an award of damages for discrimination is more difficult than it ought to be.

The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 say:

the rate of interest to be applied shall be, in England and Wales, the rate from time to time prescribed for the Special Investment Account under rule 27(1) of the Court Funds Rules 1987

The Court Funds Office publishes a leaflet setting out all the rate changes since 1965.

The rate went down from 6% (where it had been constant since 2002) to 3% from 1 February 2009. It’s due to go down again to 1.5% on 1 June 2009.

Mostly it’s fairly clear which side any given witness’s evidence supports, but once in a while there’s a witness who has relevant things to say, some of which help one side, and some of which help the other. In those cases, both sides may be thinking of calling the same witness.

A witness isn’t ‘owned’ by one side or the other. There’s no rule that once the other side has interviewed a particular witness, you’re not allowed to. In fact there’s nothing to prevent a witness giving a statement to each side.

But there are two important things you mustn’t do in this situation. The first is to ask the witness – or let them give you – information about your employer’s case preparation. That information is privileged, and you are not entitled to it. It’s probably worth pointing this out to them when you speak to them – and make sure they understand that the same holds the other way: they mustn’t leak information about your case preparation back to your employer, either. The second is put pressure on them not to give evidence for your employer.

If your employer finds out that you’ve been doing either, they are liable to make a big fuss about it to the tribunal of the kind that could result in a costs order against you – or even having your claim struck out.