Keep It Legal
In her article last month, Julia Gray described the process of responding to an employment tribunal claim. Here she considers the steps to prepare the case for hearing or otherwise resolve the claim.
Directions – also known as ‘case management orders’ – will be set out in writing by the tribunal telling the parties how to prepare the case for the final hearing.
The most common directions that an employment tribunal (ET) makes relate to disclosure, bundles and witness statements, so this article focuses on those aspects of tribunal preparation.
Sometimes the ET will list the case for a preliminary hearing to decide discrete issues or to set a case management timetable. ET rules differ slightly in Scotland and Northern Ireland; those described here apply to England and Wales.
The ET process is intended to be accessible to parties who do not have legal representation, but in practice most respondents are represented by solicitors. Preparing for a hearing can be complex and time-consuming and little practical guidance is provided by the tribunal.
Settlements out of court
My article last month considered the role of Acas in ‘early conciliation’. Acas continues to offer its services to the parties for the duration of the case and many are settled before they reach a final hearing.
Even if one or both parties intend to settle out of court, until the case has finally settled, they must still comply with the ET directions, unless the ET has excused them.
Failure to comply with case management orders can lead to you being ordered to pay the other party’s costs or even lead to your defence being struck out, so it is important not to assume that your case will settle.
Another way of achieving a settlement is through ‘judicial mediation’, which involves a day or half-day of negotiations facilitated by an employment judge.
Participation is optional and is subject to the ET and all parties being willing to engage.
If no agreement can be reached, the case will continue to a hearing, which will be dealt with by a different judge, and the parties will not be permitted to refer to what happened in the judicial mediation.
Disclosure is the process in which the parties share with each other the documents that are relevant to the case.
The aim is to then agree which of those documents will be included in a common pack of documents covering all aspects of the case – the pack is called the ‘bundle’.
Preparing the bundle is usually the responsibility of the respondent or their advisers.
The final bundle will eventually be presented in chronological order, paginated and indexed. All parties and the ET itself will need a copy of the bundle, which often runs to hundreds of pages.
‘Documents’ does not just mean paper and computer files; they include anything on which information is stored or recorded – for example, video recordings, emails, photographs, text messages and social media posts.
All relevant documents
You must disclose all relevant documents that are in your possession or under your control – for example, held by a third party such as your employee or a payroll provider.
Whether the document in question helps or hinders your case or your opponent’s is irrelevant.
Documents that would usually be confidential are disclosable unless they come within a specific exemption such as privilege or without prejudice.
If you have instructed legal advisers, they will guide you on this.
You must not dispose of or destroy damaging documents to try to avoid disclosure. Ideally, care should be taken not to create documents in the first place that could be damaging in the case of future litigation.
Your defence to the claim will comprise the ET3 Response that you submitted at the outset –which we covered in last month’s article – and witness evidence, which will be presented orally in the ET hearing.
Written statements must be prepared in advance for any witnesses that you intend to call to give evidence in the final hearing.
Witnesses need to be selected carefully, ensuring that between them they address all the allegations. In a claim for unfair dismissal, for example, a respondent would be expected to call anyone with decision-making powers, such as the dismissing officer and appeal officer.
In a case involving allegations of discrimination, you would usually call anyone accused of discriminatory behaviour, so that they can rebut the allegations.
Some cases require expert witnesses; for example, to give evidence about the claimant’s health where it is disputed whether they are disabled.
The witness statements must cumulatively tell each party’s side of the story, address each allegation and refer to the key documents in the bundle.
Your legal representative will help to draft the statements, but it is important that the evidence is the witness’s own and that it is complete, accurate and honest.
Witness statements should be signed and include a ‘statement of truth’, which is a form of words that makes clear that the witness understands that contempt of court proceedings may be brought if anything in the document is untrue.
Witness statements are exchanged between the parties in advance of the hearing. This is usually done simultaneously by email so that neither side has the advantage of seeing the other’s evidence in advance.
Julia Gray (right) is an associate at Hempsons Solicitors