Sometimes employers will dismiss on the strength of information from someone they are not prepared to identify – let’s call him or her X.

What can you do about that? Can you make them call X to give evidence?

The main answer is that you probably don’t need to. Remember that what the ET is mainly interested in, in a misconduct dismissal case, is not whether you actually did what you were accused of – but whether your employer genuinely believed, on reasonable grounds and after an adequate investigation, that you did what you were accused of. So they don’t need to know how convincing they think X’s evidence is. They need to know things like what questions X was asked, what X’s answers were, whether you had a chance to challenge what X said, and so on. That doesn’t necessarily mean that you had to be given the opportunity to question X yourself, or have him or her present at the disciplinary hearing: but you do need to have known in detail what had been said against you, and normally also who said it, so that you can make any points you might want to make in your defence. If X is in fact someone who has a grudge against you, you’d want to be able to tell your employer about that at the disciplinary hearing. If you weren’t able to because you didn’t know who X was, that may make the dismissal unfair.

You can make those points perfectly well without having X present at the hearing. In fact, you might be able to make them better: if X turns up, and turns out to be someone who has no reason to have a grudge against you and whose evidence is convincing, your employer will be able to say ‘Go on then. Make the points you’d have made at the disciplinary hearing now.’ If you’ve nothing much to say, your employer can then argue that even if it wasn’t fair not telling you who X was, they’ve now demonstrated that it wouldn’t actually have made any difference if they had told you.

Of course, if you’re convinced that X doesn’t exist at all, you might want to press your employer to call them, in order to demonstrate that. You could write to them and say ‘I don’t think X exists, and that’s what I’ll be telling the ET at the hearing. So if you say he or she does exist, you’d better call them to give evidence.’ And then if there’s still no X at the hearing, you can show the tribunal your letter, and ask the tribunal to conclude that X doesn’t exist.

You could also use the tribunal’s power to direct a party to give written answers to questions to find out who X is: ask the tribunal to order them to tell you X’s name and address. See ¶¶3.26-3.28 of ET Claims for how to do this.

Under rule 35 of the Employment Tribunal Rules of Procedure, preliminary consideration of an application for review of an a tribunal decision must be done by the employment judge of the tribunal that made the decision. If that is ‘not practicable,’ preliminary consideration may be carried out by another employment judge. A reader has drawn my attention to a case in which preliminary consideration was carried out by the regional employment judge on the grounds that the employment judge of the original tribunal (in Reading) had been promoted into into the position of regional employment judge in a different region (East Anglia), and it was therefore ‘not practicable’ for him to deal with the application.

This seems odd. Getting documents from one place to another within the UK has been cheap and easy for some time. The Uniform Penny Post was introduced in 1840; the invention of the fax machine followed in 1843 (though admittedly it didn’t catch on in a big way more than another 100 years); and email has been a standard means of business communication for something like 20 years. Even a runner with a message in a cleft stick could probably get a review application from Reading to Bury-St-Edmunds in a matter of days.

Anyone who’s ever been on the wrong end of an employment tribunal’s decision that it was ‘reasonably practicable’ for them to present their ET1 on time will be surprised – and perhaps rather dismayed – to see an employment tribunal holding itself to a much lower standard. There may be perfectly sensible reasons why it’s inconvenient for cases to follow employment judges around when they move from one region to another; but if that’s the case, it should be dealt with by redrafting rule 35 – not by pretending that ‘not practicable’ means ‘inconvenient.’

You can settle your case by withdrawing it, or agreeing to withdraw it, in return for your former employer’s promise to pay you some money. (It’s normally mainly money, though sometimes there will be other things you want, like a decent reference.)

But suppose you don’t trust your former employer further than you could spit a rat? That makes it difficult to set much store by their promise. What makes you think they will keep it?

There are two thoughts worth having in mind for this situation. One is that in the normal way of things, when you settle, what you’re doing is trading in your ET claim for a contract with the respondent under which they have to pay you some money. The contract isn’t actually money, but it entitles you to a defined sum of money; and if the respondent doesn’t pay what they’ve promised to pay, you have a claim for breach of contract that is much more straightforward than your ET claim would have been. So you’ve swapped a claim of uncertain value for a claim of very clear value. If it’s sensible bargain, it’s worth having even the respondent makes difficulties about paying – because if they do, you can be sure they’d have made just as much difficulty about paying an employment tribunal award.

So in general, ‘I don’t trust them to pay’ won’t be a good reason not to settle.

All the same, there are a couple of things you might be able to do to improve your position. One is to ask for a cash payment. If you’re settling for several thousand pounds, this will probably only work if you have a few days at least before the hearing: most respondents won’t come to tribunal with a fat wad of £50 notes in their pocket, just in case. Another option (which may be more practical if you’re negotiating at the door of the tribunal) is to ask for a cheque. You might want to ask for a personal cheque if you’re afraid that the company that employed you might cease to exist rather than pay you what it owes you. Or you could ask for an immediate BACS payment straight into your bank account.

This iteration of the site has been going since August 2007, when we announced the 2nd edition. In that time we’ve published 415 posts (counting this one).

One of the problems with the blog format, is that most of these posts are buried fairly deep in the site where nobody ever reads them. Often this is fine, because time has made them irrelevant. But there are some that we think are still relevant and useful.

So, this is the first of an occasional series of posts highlighting past posts that we think are still worth reading. If you’re looking for something specific, you can also use the search and index function in the sidebar to the right.

What doesn’t go into a witness statement: On not including irrelevant stuff, or things that are better dealt with elsewhere.

Difficult cases: There is a point, in many cases, where the representative starts to feel that he cannot understand the case….

How to emphasise: Italics vs bold vs underlining.

The President of the EAT has now put out a Practice Statement dealing in a bit more detail with the points made in News From the EAT.

It can be downloaded here.

The London Marathon is on Sunday. I will be running it, as usual, for fun (for a given value of fun), but also to raise money for the Free Representation Unit.

So, this is the annual post asking for your help. FRU does good work (1145 cases last year), but funds are tight and anything you can spare would be gratefully received.

If you’d like to sponsor me, the easiest way of doing so is via justgiving at http://www.justgiving.com/reedmj12 You will be rewarded (if not in heaven), at least by seeing a picture of me wearing a silly hat.

In my last post, I mentioned that the EAT likes the relevant passages of authorities to be highlighted or sidelined.

Highlighting is fairly obvious. You take a yellow highlighter and highlight the relevant parts of the judgment.

Sidelining is similar. You take a pen and draw a vertical line to the left of the relevant passage. Unless you have a very steady hand, it’s best to use a ruler.

Coincidentally, the quotes on this site are sidelined.

Personally, I prefer sidelining, because I think it looks neater. But this is really a matter of personal preference.

How much to highlight / sideline is a matter of judgment. In general it should be done sparingly. The idea is to mark a few key passages which contain the heart of the judgment, and which you are likely to refer to in the hearing. If you’re highlighting much more than that, you’re probably doing too much.

You should also try to agree the relevant passages with the other side. The normal way of doing this is to send a brief email or note making your suggestions in the form: Jones v Smith — para 8, 9-10 ….

Yesterday, I was at the Employment Appeal Tribunal User Group. The members were asked to pass a couple of messages outwards to the wider community.

Fresh Evidence Appeals

The President Mr Justice Langstaff reiterated the message put out by his predecessor, Mr Justice Underhill, that, in general, challenges by way of fresh evidence should be made by review rather than appeal. Fresh evidence challenges are where new evidence appears after the hearing and you want to say that this means the decision should be changed.

Basically, the EAT’s view is that the tribunals are best placed to decide whether new evidence should be considered and what affect it should have. After all, they are the ones who heard the rest of the evidence and are familiar with the case. Also, appeals on new evidence tend to waste time, since, if they are successful, they have to be sent back down to the tribunal anyway. So it makes more sense to go direct to the tribunal in the first place.

We wrote about this a few years ago in: New evidence after tribunal. The general advice there still holds good (although subsequent cases have concluded that the EAT does have jurisdiction to consider fresh evidence appeals, so that particular hare is no longer running).

Citation of authorities

These points were aimed at professional representatives who have easy access to law reports. If you are a litigant in person, it’s worth complying if you can, but don’t worry if it isn’t practical.

First, in general, lawyers in the EAT should follow the rules set out for the courts. Coincidently, there has just been a new Practice Direction on the Citation of Authorities.

Second, lawyers should use proper reported cases whenever they are available. Photocopies of the hard-copy reports or electronic versions are both fine, provided they contain the full text of the report, with headnote etc.

Third, the authorities bundles should be arranged in chronological order.

Fourth, you should only cite cases which set out a point of legal principle, rather than those that give examples of the principle being applied.

Fifth, the relevant passages of each judgment should be sidelined or highlighted in the bundle.

Six, the EAT appreciates bundles of authorities being provided in binders and with tabs separating them.

HM Courts & Tribunals Service has announced a number of austerity measures that users of the employment tribunals can expect to see over the coming months. (Some of these measures may be familiar to some readers, having already been piloted in certain regions.)

HMCTS is continuously on the look-out for further cost-saving measures. Suggestions left as comments on this post will of course be forwarded as appropriate.

The American Bar Association makes all of the merits briefs to the US Supreme court available online.

Don’t rush off to read them if you’re just running your own case in the tribunal. Since the US has a different legal system the law they discuss is irrelevant to you. Also, they argue cases, particularly on appeal, very differently. US appeals are basically decided on the papers. Even in the Supreme Court, lawyers are usually restricted to half an hour oral argument. So US briefs have to argue the whole case, rather than being skeletons to be fleshed out orally.

So, the US briefs aren’t directly relevant and, if you’re just doing the one case, your time is better spent elsewhere.

But, if you do a lot of cases or you’re interested in legal writing, they are well worth a read. Many of the lawyers arguing in the US Supreme Court are brilliant advocates and the US system encourages them to hone their written work. You can learn a lot about how to set out and argue a point by studying their example.

A hat-tip to Carl Gardner, whose Written constitutions: a warning from America prompted this post. And, come to think of it, is also worth reading to see good legal writing.