Employers quite often refuse to disclose documents that mention or relate to other individuals, saying they have to keep those documents confidential because of the Data Protection Act.

They are wrong. Section 35 of the Data Protection Act says this:

(1)  Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.
(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary—
(a)  for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or
(b)  for the purpose of obtaining legal advice,
or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

In other words – in this context – there is nothing in the DPA to prevent an employer from disclosing documents if disclosure is necessary in employment tribunal proceedings. At most, if the relevance of your request isn’t obvious, they might say that they are not sure that section 35 applies because they are not sure disclosure is ‘necessary’ for the stated purposes – so if you want it you’ll have to get the tribunal to order it. But that doesn’t mean the DPA will be of the slightest help to them in opposing your application: you’ll just be arguing about whether disclosure is necessary, which you’d always have to establish before you got an order for disclosure.

Lots of employment tribunal cases are won or lost depending on how thorough a job the claimant has done of shaking all the relevant documents out of the respondent.

A particular point to keep in mind is just how much communication is now done by email. That can be easy to overlook if your own job doesn’t involve sitting at a computer all day. But for those who do (and that means almost all office-workers), many things that a few years ago would have been said on the phone or face-to-face are now put in an email.

The difference between picking up the phone or putting your head round the door and writing an email, of course, is that the email leaves a permanent record. So if your managers have been discussing by email how to go about sacking you (for example), that is material that you should be able to get hold of when it comes to disclosure.

What do you do if you’re desperate for a pee and there’s still an hour to go until lunchtime or the end of the day?

If you’re just observing the hearing – whether it’s your case, or you are a friend or relative of the claimant’s, or a member of the public, or you’re a witness waiting to give your evidence – you can just quietly leave the room. You may have various reasons for coming and going during the hearing, and there’s no obligation to stay put once you’re there.

But if you are in the middle of giving your evidence, or you are representing one of the parties, the hearing can’t go on without you. That doesn’t mean you have to be heroic: just ask for a break. For some reason, the standard way of saying this in the employment tribunal is to ask for a ‘comfort break.’ It is a common enough request and one that is pretty much bound to be granted: there’s no need to feel anxious or embarrassed about it.

An important bit of preparation for the hearing is getting detailed comments on the other side’s statements from your client. There are two reasons for this.

First, you may want to get your client (or other witnesses) to give some additional evidence commenting on the other side’s statements. You need to know before the hearing what they have to say, so that you can ask the right questions to give them a chance to say it.

Second – and perhaps more importantly – you need this information for the purposes of your own cross-examination. If the dismissing manager says something that your client says can’t be true, you need to know why – so that you can put that to the dismissing manager when you are cross-examining her.

So as soon as you exchange witness statements, send the employer’s statements to the claimant and ask for detailed comments on them. For everything they say, you want to know ‘Do we agree with this? If not, what do we say?’ It’s important to do this promptly, because you will often need further explanation of some of the comments: people aren’t always very good at realising quite how specalised their knowledge about their own workplace is. Depending on your client, it may be better to do this in a face-to-face meeting. Have the person who is going to present the case to the tribunal at the meeting if at all possible.

I’ve just read the best advice I’ve ever seen on this subject in Bryan A Garner’s book The Elements of Legal Style (2nd ed., OUP 2002, p.207). It’s worth quoting at some length:

Gender-neutral language isn’t about political correctness; it’s about credibility. Regardless of how you may feel about the old “rule” that the masculine he includes the feminine she – whether you detest it or you like it – you’ll need to handle the English language with some care to have credibility with a wide range of readers.

This isn’t an easy task. On the one hand [some] readers …. will think you’re crazy if you write he/she, s/he, or (s)he. They’ll know you’re crazy if you write – as one book author has – s/he/it. On the other hand, [readers of a different sort] will think you’re a troglodyte if you use he to refer to readers generally – as if the feminine were the unstated exception swept into the masculine rule of our language.

Is there no way to win over your readers, then?

Yes, there is. It takes some skill and a lot of effort. With those two things, you’ll be able to produce a style that never induces readers to consider your personal biases. If your point is that you want to induce this reaction, then you’re rebuffing some of your readers – something you may willingly do unless you have a client whose money and perhaps even freedom are on the line. If you’re trying to persuade someone on a point unrelated to sexist language, then the issue shouldn’t even arise.

Garner goes on to demonstrate various specific techniques: weeding out pronouns (e.g. ‘a claimant in this situation should do this or that’ instead of ‘if a claimant is in this situation, he should do this or that’); pluralising (‘if claimants are in this situation, they should do this or that’); using the 2nd person and imperative voice (‘if you are in this situation, do this or that’); and several others.

But his key insight is that – if you are writing on someone else’s behalf, and seeking to persuade – it doesn’t matter whether the feminists or the troglodytes are right. What matters is that if you side visibly with either, you’ll risk annoying someone. The only way to be reasonably sure not to annoy any reader is to make the issue disappear from sight.

The third edition of Employment Tribunal Claims is now being printed.

There are two ways of pre-ordering the book. Amazon is currently accepting orders at the reduced price of £26.25. Or you can order direct from Legal Action Group at the list price of £35.

The advantage of ordering directly from LAG is that you’ll probably get the book before Christmas. Orders from Amazon will have to go from LAG, to Amazon, then on to you, and probably won’t reach you until January.

If you want to read some reviews of the first and second editions, you can find them here.

We’re not actually recommending it as a Christmas present, though.

The Court of Appeal has handed down a short decision in St Albans’ Girl School v Neary declining to award costs against a claimant who lost in the employment tribunal, won in the EAT, and then lost when his employer appealed to the Court of Appeal.

The decision is a bit surprising, because the normal rule in the Court of Appeal is that costs ‘follow the event’ – that is, if you lose, you pay the other side’s costs. But in Neary Lady Justice Smith said:

Mr Neary began proceedings in a cost-free jurisdiction. He lost. On the state of authority in the EAT, he was justified in bringing an appeal. Again, he was in a cost-free jurisdiction. He won. Because St Albans (reasonably) wished to overturn that line of authority, the case came to the Court of Appeal. There Mr Neary was pitched against his will into a cost-bearing jurisdiction. It would have been very hard on him if he had had to cave in so as to avoid the risk of costs. In the event he lost but only because St Albans was able to persuade us that the line of EAT authority had developed wrongly.

If you have won in the EAT, and you then face an appeal by your employer, you can take some comfort from this. Even if you lose in the Court of Appeal, you may not have to pay your employer’s costs.

But note that it is still only only ‘may not.’ Just because the Court of Appeal has refused to award costs in favour of the successful party in one case, it doesn’t follow that you can’t be made to pay your employer’s costs if you lose. The risk that you will have to is still real, so you will have to think hard about whether you can afford to take it. Mr Neary was lucky: he didn’t in fact have to pay costs. But on the information available to him when his employer appealed, he was taking a serious risk. Many people in those circumstances would indeed have caved in.

‘Hearsay’ is a technical term. It’s one of those things that tribunals sometimes assume everyone understands, when in fact few non-lawyers do.

It’s not very difficult, though.

All hearsay evidence is evidence a witness gives about what someone else said. But evidence isn’t hearsay just because it’s evidence about what someone said. It’s only hearsay if the point of giving it is not to persuade the tribunal that someone else said something, but to persuade them that what someone else said was true. So you can run a simple test on any piece of evidence about what someone said: ‘Does the witness want the tribunal to believe that what was said was true?’ If the answer is yes, it’s hearsay; otherwise not.

Examples

Suppose you tell the tribunal that Alison told you before your disciplinary hearing that she’d already been asked to draft an advert for your job. Why are you telling them this? Because you want them to accept that Alison had been asked to draft an advert for your job before the decision had officially been made to dismiss you. But the best person to tell them about that is Alison, not you. Your evidence is hearsay.

Now suppose you tell the tribunal that your manager said you were a useless wanker. This time you’re not trying to persuade them that what your manager said was true – you’re not giving this as evidence that you are a useless wanker. You’re just trying to persuade them that your manager insulted you. So although your evidence is about what you heard someone say, it’s not hearsay. (Of course, if you tell the tribunal that Alison told you that your manager told her that you were a useless wanker, that is hearsay.)

Why does it matter?

It doesn’t much, actually. Employment tribunals can hear whatever evidence they please, and there are no technical rules about hearsay, though they will probably place less reliance on hearsay than on direct evidence. But it’s a term you may hear, so it’s as well to understand what’s being talked about if you do.

In a complicated case, it’s worth saving all the statements on your side (and the other side too, if you have them in a suitable format) as a single continuous document. That way, if you know someone has said something about a particular subject, but you can’t remember who said it, or exactly where in their statement, you have a single document that you can search electronically (ctrl+F on a PC). This is useful while you’re preparing the case – and at the hearing too, if you have a laptop with you.

Clerks are the people at the tribunal who handle the administration on the day of the hearing: they take your name when you arrive, collect bundles and witness statements for the tribunal and the witness table, ask whether you want to affirm when you give your evidence, or swear on a holy book, take you to your tribunal room when the tribunal is ready to begin, and so on. They aren’t lawyers, so you can’t expect them to give you legal advice – but they will have a lot of practical information about how the tribunal works, and mostly they are pleasant and helpful. You can ask them, for instance, if you need to pass a message through to the employment judge – for instance to ask for more time to finish negotiating; or if you need to know where the nearest print shop is (they won’t be allowed to do photocopying for you unless told to by an employment judge); or whether the other side has arrived at the tribunal yet; or to find out if there’s a room you can use to meet with the other side for negotiations.

First thing in the morning, until about 10 am, there will be a clerk on the reception desk at most tribunals. At other times, if they are not around, you can probably contact them using the telephone on the reception desk – there will be instructions on or near it about which extension to call.