Employment tribunal procedure updated 2023: lessons from a long career - Part 3

Employment tribunal procedure updated 2023: lessons from a long career – Part 3 (of 5)

Employment tribunal procedure updated 2023: lessons from a long career – Part 3 (of 5)

Case management orders (CMOs)

Preliminary hearings will normally result in case management orders. These can be lengthy, complex and challenging to comply with. Recently, an ET issued a 16-page list of case management orders. This caused a litigant in person extreme difficulty. Note that these orders must be complied with to the letter.

Examples of CMOs:

  • By no later than July 21: set out in writing the remedy which the ET is being asked to award (schedule of loss). A copy must be sent to the other side. Evidence of how the amount of the claim is calculated must be included. Information about steps which have been taken to reduce loss must be included.
  • By no later than August 5: the claimant and the other side must send each other a list of the documents relevant to the case.
  • By no later than November 22: the other side must prepare a bundle of documents for the hearing.
  • By no later than December 5: Witness statements must be prepared and exchanged, subject to word number limits.

It is important to comply with these orders, but be aware that different ET judges have differing views on the effect of non-compliance.  

Case management orders examples

Schedule of loss

In relation to remedy (the amount of money claimed) (the schedule of loss) this can be problematic. In general terms, the accepted form of a schedule of loss involves the following:

  • Key figures: date of birth, effective date of termination of employment, gross weekly pay and average net weekly pay
  • Basic award, calculated in same way as redundancy payment
  • Compensatory award: actual and future loss of earnings
  • Pension loss: extremely difficult to assess. My need actuarial advice.
  • Other losses, for example company car, mobile phone etc.

Bundle of documents

The preparation of the bundle of documents, ordered by case management order, is normally done by the employer’s representatives. Agreeing the contents of the bundle can be tricky and time-consuming. Be prepared for discussion and negotiation. If the employer is represented by a large firm of solicitors, the drudgery of preparing the bundle may well be delegated to a paralegal or a trainee, in which case mistakes may be made. It is important to carefully check the contents of the bundle against the list of documents previously exchanged, and ensure that the maximum number of pages ordered by the ET has not been exceeded. If there are too many pages, the bundle should not be accepted, and there may be lengthy arguments about which documents should be taken out.

Witness statements

The ET will normally order a date by which witness statements should be exchanged, and the maximum number of words. The maximum number of words is a matter for the discretion of the ET judge. Numbers of words can vary widely from tribunal to tribunal and it can be difficult to persuade judges to increase the maximum. Exceeding the maximum can cause extreme difficulty.

Statements should be arranged in numbered paragraphs and must be ended with a formal statement of truth.

Witness statements are, basically, evidence by witnesses of what happened. They must be truthful and are best stated in the witness’s own words, regardless of grammatical and spelling mistakes. Witnesses must not be coached as to the contents of their statements.

The following suggests how a claimant’s witness statement could be formatted:

  • Start with identifying self and address
  • State date employment started, what was the job and where you worked
  • Describe the complaint
  • Refer to relevant documents
  • Refer to evidence which supports the claim
  • State what efforts have been made to reduce losses and to find new employment

Witness orders

Some witnesses who are still employed by the employer named in the case may, understandably, be reluctant to make a statement or to give evidence.

Christie v Paul and others.C lodged a number of complaints with the ET, including sex discrimination, harassment, victimisation and automatic unfair dismissal. She applied for a witness order to compel a female colleague to give evidence. The ET refused the application without giving the opportunity to make representations. C stated that the colleague had previously stated her willingness to attend as a witness but had then refused after entering into a non-disclosure agreement with the employer. C appealed to the EAT, arguing that that the ET had been wrong in law in failing to consider the relevance of the colleague’s evidence, the necessity of making a witness order and in failing to have regard to the overriding objective.

The appeal was dismissed. The ET had done nothing more than insert a permissible procedural step into its consideration of the application.

That procedural step was in accordance with the overriding objective and was consistent with a more general concern to do justice. The step was open to the ET in exercising its case management powers.

Hearings

Preparation is everything. This involves:

  • A good grasp of the details of the case
  • Highly organised documentation
  • Awareness of legal and procedural issues
  • Preparation of questions for the other side
  • Preparation of closing submissions.

Be aware that the hearing process is unpredictable and that power is in the hands of the judge. Possible non-legal complications include:

  • Failure of witnesses, parties or lawyers to turn up.
  • Emotional outbursts
  • Constant interruptions from the other side, lawyers or the judge.
  • Hearings can be extremely boring and it can be difficult to keep up concentration, particularly on a hot afternoon.

The way in which the hearing develops depends very much on the characteristics of the individual judge. Unfortunately, some are well-known to be bad-tempered and intrusive. Others are patronising. Many are highly efficient professionals. It is worth remembering that they are very well-paid. It is worth noting that a very small minority of judges (not employment tribunal judges) have been warned about their rudeness and hostility in hearings.

ET hearings are generally recognised as being stressful and unpredictable, particularly for unrepresented claimants. In practice, employers who are represented by a solicitor or by a barrister may in reality be at a disadvantage if the claimant is unrepresented, because the ET judge may be more sympathetic to the claimant’s lack of knowledge of the rules of tribunal evidence and procedure. The reality, however, is that ET hearings pose extremely significant difficulties for unrepresented claimants. These difficulties can be reduced by attending other tribunal hearings in advance and observing the way in which they function.

Lawyers do not have an advocacy monopoly in ET hearings. Claimants may be represented by a person of their choice. There is no dress requirement. There is, however, now not much difference between a tribunal hearing and a court hearing.

Advocacy points in general:

  • The judge should now and in future be addressed as “Judge”, not sir or madam.
  • It can be argued that the English tradition of oral advocacy involves a massive waste of time and money. This applies to a lesser extent in the ET because of case management orders and the fact that evidence will have been read by the judge before the hearing.
  • Most ET advocacy amounts to cross-examination (questioning) of witnesses on their statements.
  • The “art” of the advocate can sometimes be seen to be the asking of questions of such detail and complexity, endlessly repeated with hardly noticeable variations, until everyone has lost track of reality and any answer can be challenged.
  • If in doubt, seek the advice of the judge. If nervous, take deep breaths and sip water to deal with a dry mouth. 
  • Be aware that the other side (even a legal representative) will almost certainly be stressed and anxious but hiding it. They may have picked up the papers for the case the night before the hearing, have had little sleep and travelled a long way to the tribunal. You may well be better prepared than the other side.
  • The supposed image of calm efficiency in the tribunal is very different from the chaos which can reign in reality. Documents get lost, witnesses are late or don’t turn up at all. Be prepared for the unexpected.

Adjournment/postponement of hearing:mental health issues

Shui v University of Manchester and others.S had a history of psychotic depression. He was able to pursue litigation and he complained of unfair dismissal and disability discrimination. Before the hearing, an issue arose as to his ability to take part. At a preliminary hearing, the judge referred to a letter from S’s doctor which stated that S was unfit to attend the hearing and should apply for a postponement. The respondents stated that if S applied for a postponement, they would apply for a strike out. S chose to proceed. The ET made many adjustments to help S to participate. During cross-examination S became visibly distressed. The tribunal agreed to a submission by the respondents’ counsel to proceed without further cross-examination. The claims were dismissed. S appealed to the EAT on the basis that he had been denied a fair hearing. The appeal was dismissed.

Where litigants in person had mental health issues, employment tribunals had a responsibility to make allowances and to ensure that such litigants were in a position to make a free and informed choice as to the course of proceedings.

S had been aware that he could apply for a postponement but had chosen not to do so. The tribunal had been mindful of its obligations to the claimant. Looked at overall, S’s right to a fair trial had not been undermined.

Adjournment of hearing: disabled claimant

Leeks v Norfolk and Norwich University Hospitals NHS Foundation Trust.

L complained of disability discrimination. The employer applied for an order for L to provide further and better particulars within 20 days and listed a preliminary hearing for a month later. L requested an extension of 11 weeks to comply with the order for particulars and for a further month for a preliminary hearing. Her request was based on her own ill-health and that of her husband. It was supported with letters from a number of doctors.

The request was refused on the basis that there was no full medical report. L renewed her request and sought a telephone case management hearing. At the preliminary hearing in the absence of L, the employment judge struck out the complaint on the basis that the claim had no reasonable prospect of success and L’s failure to comply with tribunal orders. He also awarded costs against L on the ground that she had acted unreasonably in bringing and conducting the proceedings. L appealed against the costs order, arguing that the tribunal judge had considered correspondence marked without prejudice save as to costs and had failed to make reasonable adjustments.

The appeal was dismissed.

The refusal of an adjournment and the decision whether to continue on the absence of a party was a case management decision which fell to be scrutinised on appeal on the same principles as any other appeal.

The appeal tribunal was not required to adopt a test of proportionality where adjustments might be necessary to ensure as full a participation as possible for a disabled litigant and decide what was fair.

Mental health issues

Anderson v Turning Point Eespro. In 2009 A brought a sex discrimination claim against her employer. The claim was successful. The remedies hearing did not start until 2012. Judgment was given in 2015. A’s poor mental health was one reason for the delay. A was unrepresented and expert psychiatric evidence was needed. A appealed on the basis that she had not had a fair trial. She argued that insufficient adjustments had been made to take account of her mental health and that the ET should have sought evidence on what adjustments were necessary to achieve a level playing field.

The EAT stated that the responsibility to propose adjustments or particular measures rests with a party’s representatives rather than with the court.

The tribunal can expect a party’s interests to be looked after by his or her representatives. There was no need for a ‘ground rules’ hearing in every case with a disabled claimant and no general need to obtain specific evidence on potential adjustments.


About the author
Robert Spicer is Head of Chambers at Frederick Place Chambers, a niche practice specialising in employment law and health and safety. Details of the practice can be found on Chambers website: www.frederickchambers.co.uk