"He who knows when he can fight and when he cannot will be victorious" – practical tips for respondents dealing with Tribunal litigation
Sun Tzu, a Chinese nobleman, wrote a short text on military strategy in the Second Century B.C. Some of his theories can be seen to apply equally to approaching Tribunal litigation. Employment Tribunal litigation can be stressful, expensive and time-consuming. Below, I set out a selection of practical tips to consider when dealing with case preparation or running tribunal litigation:
- There is often a temptation to file an ET3 and then forget about the case until the next case management deadline – this should be avoided. Take the opportunity early on to identify the issues. This is crucial in understanding what evidence should be collated and who will need to give witness evidence. You don't have to frontload cost by doing this – just make sure you have worked through the issues and thought about where and how to collate the material you'll need at a later stage, and identified which individuals can deal with which issues. Where there are concerns about recollections fading, make sure those involved have noted down the key facts.
- Assess the merits and value of the claim at the outset and consider whether it's worth fighting. As Sun Tzu says, it is sensible to pick your battles: settlement is not always a defeatist gesture. The cost of litigation (both in financial and reputational terms) can outweigh the value of a claim and as parties do not usually recover their costs in the Tribunal, there may be commercial reasons to try to settle. Alternatively, there may be points of principle that make the case worth fighting despite the costs involved. Sometimes, of course, there is no choice but to fight (for example, where the other side won't settle). You may have got some idea of how things stand in this respect during the pre-conciliation period, once that comes into effect.
- Your understanding of the merits of the claim may vary as the case proceeds. Don't feel as though you have to doggedly hang on to the initial assessment of merits – adapt your strategy to the story as it unfolds - for example, where an incriminating email comes to light during disclosure or after you have received the other side's witness statements. Keep revisiting your assessment of merits and consider whether there should be any change in your position regarding settlement (and if so, how best to open up discussions in that respect).
- Consider the timing of any offers. A party may be more inclined to settle before it has to incur significant time and/or expense; for example, before work on witness statements begins or before having to pay a hearing fee under the new Tribunal fees regime. It is worth having a broad road map of the chronology ahead (for the other side as well as for your own defence) so you can be strategic about when it might be opportune to make an offer.
- A Tribunal may make a costs order where a party has acted vexatiously or unreasonably in bringing or conducting proceedings, has breached Tribunal orders, or where its claim had no reasonable prospect of success. If you intend to make an application for costs, it is good practice to put the other side on notice of this. It is important, however, not to be oppressive in making threats in relation to costs, particularly where the other side is unrepresented.
- Don't be unnecessarily aggressive in correspondence with the other side – always consider how the letter will look when presented to a Tribunal panel. Whilst it is often necessary to be robust, you should not seem unreasonable. Rightly or wrongly, this is particularly relevant to the respondent, who usually has far greater resource and support than the claimant (in the Tribunal's eyes, at least).
- Consider mediation, particularly where a dispute is sensitive or involves confidential information, as Employment Tribunal hearings are public but mediation is confidential. In addition, mediation can sometimes offer more imaginative and creative solutions than a tribunal is able to do.
- Collect evidence of job opportunities suitable for the Claimant from the outset of proceedings as evidence for any remedies hearing and to reduce continuing loss.
- The performance of witnesses is often critical to succeeding at Tribunal. It is therefore important get the "buy in" of witnesses at an early stage and to make sure witnesses are supported fully through the process. Witnesses should be encouraged to attend the Tribunal to watch another hearing before they give their evidence and it may also be worth considering specific training for key witnesses. Generally, we would not advise calling a reluctant witness, unless you really cannot do without their evidence.
- Witnesses should be encouraged to sit in on as much of the hearing as possible before they give their evidence, so that they get a flavour of the other side's cross examination style and are aware of the issues that have come out of other witnesses' evidence. If you have a lot of witnesses, it may be difficult to have them all out of the business at the same time and may also risk looking as though you have attended mob handed. But if two or three witnesses are involved it can be incredibly helpful for them to hear the other evidence (and particularly the claimant's) – not to adjust their own stories, but to ensure they understand the types of issues that are exercising the tribunal, as well as the way the claimant has told his or her story. It is also helpful for other members of your HR/management team to attend for part of the hearing, if they can. It is invaluable experience and focusses the mind on the sort of issues that may be of particular concern to a Tribunal panel.
- If you proceed to Tribunal hearing, you should consider briefing your communications team in advance so that they are ready to respond to any press enquiries about the case.
- Don't underestimate the importance of making a good impression at Tribunal. Always arrive early, have your papers in good order and consider steps you might take to help the Tribunal panel, such as drafting a chronology or reading list. Remember – if you do bring other witnesses with you, make sure they sit quietly at the back: Tribunals do notice the behaviour of individuals when they are not giving evidence and the impression created by someone sighing and rolling their eyes at the back of the room can infect the evidence they themselves then give.
- Finally, whether you win or lose at Tribunal, it is worth taking some time after the event to consider what lessons you have learnt from the case, both in terms of case management and how day-to-day HR issues are dealt with on the ground.
On that note, next week I will be setting out some practical tips I have gleaned from the Tribunal for dealing with day-to-day HR issues.