Advice for employment tribunal

[Heretoday]

Hi all

I am new to this forum but would really appreciate some advice on a couple of questions that I’m tormented on please.

I have a discrimination case against my employer which is going to an employment tribunal this November. I had the following questions please:

1- I had retained a solicitor but had been unaware that I would need a barrister for court (silly of me I know but I somehow thought barristers were only needed in criminal court). Now I am wondering whether or not I need to retain both a barrister and a solicitor. I have been dealing directly with the court anyway but have retained my solicitor to provide advice where needed. As I am much closer to my case, I can also see myself being the main person completing the court forms- perhaps with a professional checking and advising. Would having both a solicitor and a barrister be doubling up on costs for not much incremental benefit or would I be jeopardising my chances if I switch to a public access barrister at this stage- for example, if my employer were to wish to negotiate an out of court claim?

2- I had tried to make a Subject Access Request (SAR) of my employer to obtain information I felt would be helpful but they have been quite uncooperative. The Information Commisioner’s Office have ruled that they did not properly comply with the Data Protection Law but left it to me to legally challenge them on this. My employer also falsely represented crucial information that could be pertinent to my case, but I was able to challenge them on this and obtained an original which highlighted the previous misrepresentation. I had requested that the court help me obtain information as per the SAR but this was dismissed as not in the ET’s remit and that any requests for information would need to follow the preliminary hearing. I am now wondering how best to leverage this process to get information I need. While there are specific documents I would like to have, there are probably far more of which I am unaware so would be unable to request specifically. Is there a way for me to make such requests for the court so that 1) they are more likely to be ordered by the judge, and 2) to help uncover documents that I don’t know exist specifically, which may have been deliberately withheld by my employer? As I know that they have often lied, I had originally been hoping to get them to confirm to court (under penalty of perjury) that any representations made to me as part of the SAR were truthful. I know the latter is a long shot but would be grateful for any advice here.

Thank you so much in advance!

[EnglandPi]

deleted

[ULA]

In answer to your questions:

1. Firstly you do not always need a barrister as many employment law solicitors are more than capable of carrying out the advocacy at an ET. Hindsight is a wonderful thing but always worth checking first. Has your solicitor explained why they are not prepared to carry out the ET advocacy?

A public access barrister could potentially save you money, since you would be paying for a barrister only, instead of a barrister and a solicitor. However, although the barrister would be able to deal with many aspects of the case, you may have to assist in some areas, including filing documents with the Tribunal, unless the barrister is authorised to conduct litigation on your behalf. If this is not the case then you will need to be able to collate the papers and the evidence in support of your case that the barrister will need to do the work. You would also be responsible for the exchange of documents with the other side (if this has not happened) and filing documents at the Tribunal e.g. witness statements and if required write to the Tribunal and respondent (although the barrister will be able to draft letters and other legal documents on your behalf). If you are not sure if you will be able to assist with these various tasks for whatever reason, it is worth considering if it would be better to retain your solicitor.

You also need to consider the cost in all of this compared to any award the Tribunal may make if you win your case. Unless there has been some very bad case mangement by the respondent it is unlikely that you will be awarded payment of your legal costs by the respondent even if you win your case.

2. Within the Tribunal process if there are specific documents that you are aware of that are pertinent to your claim and have not been provided either as part of disclosure by the respondent or the SAR, then write to the respondent requesting these. If they do not comply then you can apply to the Tribunal for an order for specific disclosure so you will need to know what document/s should have been disclosed and the Tribunal will want to know why you consider the document/s to be relevant for your case.

I appreciate this does not cover the documents you are unaware of however, disclosure is an ongoing process and one particular occasion on which you should always go back to the question of disclosure is the exchange of witness statements. You should review the respondent’s statements carefully, highlight every mention of a document, and check that you have it, make a note every time the statement mentions an event that may have created a ‘paper trail,’ and make sure that has been disclosed. It may be at this point the respondent “trips themselves up” and document/s you were unaware of come to light, which have not previously been disclosed and for which you can request them to be disclosed. If the respondent does not comply then you can write to the tribunal for an order for specific disclosure, explain why the additional document/s were not requested previously. If you have only realised that they exist (or probably exist) because of what is in the witness statement, say so.

Hope this helps but if you have any further questions please just come back to this thread.

[Sams111]

ULA first of all, thank you so much for taking the time to respond so fully. I have reread your response a couple of times as I wanted to absorb it before replying.

in answer to your question, I had been unaware that my solicitor would not be able to represent me in court. The engagement letter had also given an indication of the likely costs for a tribunal and I assumed she would. When he mentioned looking for a barrister I just assumed, being unfamiliar with how this process works, that this is just the way it has to be. He did mention, however, that a barrister would be better able to advise on court proceedings and how things are likely to play out in court, so I’m assuming he doesn’t feel best placed to do this.

I have received some forms from the court which need to be submitted a couple of days ahead of the preliminary hearing, which I have asked him about as I wasn’t sure who needs to complete these and he advised it could be me, him or the barrister, which is why I’m wondering what the solicitor’s role would be if I were to complete the forms myself- an outcome I feel most likely as I am closest to the events and facts.

Your response did make me wonder about a couple of things:

1- when you mention witness statements, I’m not sure when I will get a chance to review these. As documents only need to be submitted a couple of days ahead of the preliminary hearing, and the judge won’t grant a request for information ahead of this, does this mean I will only have two days to review and request information?

2- I have not prepared any witness statements but have been considering requesting one friendly witness ( who is an ex-employee) and one hostile witness (who is a current one still employed by my employer). I am not sure if the latter is possible where someone is unwilling. My thinking was that I would be able to ask her questions which she would be forced to admit to, or otherwise perjure herself. Obviously, if this is just going to be through witness statements then this doesn’t work. Obviously, my imagination of how this would work is probably heavily influenced by American TV, but I thought ahead of the preliminary hearing we would just be indicating witnesses we would like to have present.

Thanks again so much for your advice and guidance.

[ULA]

Hi sorry a bit confused Sams111 are you the same poster as Heretoday who made the original post on this thread? If not then please can you start your own thread, which can be done a the following link.

Create New Content - LegalBeagles Forum

[Sams111]

Yes sorry for the confusion - seems I’d had a previous account from several years ago that I had forgotten about that was saved on my device. I had not realised until you pointed this out. Ironically, the one I registered more recently isn’t saved.

[ULA]

Thanks for clearing up my confusion.

It does sound very much like you have a solicitor that does not conduct their own advocacy or who maybe feels that the case is too complex for them to do so, even if they normally would.

If you are only at Preliminary Hearing (PHR) it sounds like the form needing to be completed may be the "Agenda for Case Management at Preliminary Hearing", then my view is that if you have instructed a solicitor and are paying for their services it is something they should be doing. If you in fact complete this then make sure you are not charged by the solicitor!

In answer to the points you raise:

1. My response to your initial post was based on the fact that it was not clear what stage you are at and stating you are going to tribunal in November would normally imply that this was the final hearing. My response was based on the stages of document preparation throughout the tribuanl process, with witness statements being the final exchange of documents prior to the final hearing.
2. No witness likes to feel they have been forced to be one and none more so that one who is still an employee of the company. You say they are a hostile witness in what sense? If they are hostile to you, please think carefully as to what they can positively contribute to your claim, if they cannot then the last thing you need is a witness that will not assist you prove your case.

An employment tribunal does not play out like an American TV show - no. The witnesses will be asked to prepare their statements which must be available for the date set out by the Tribunal for the exchange of these documents by both parties. On the day of the hearing your witness needs to attend the Tribunal or login if it is to be via video. If the judge has not already read their witness statement, they may be asked to read it out loud. They will then be cross-examined by the respondent’s representative and then after that, your representative may ask further questions to clarify any points raised.

[Sams111]

Thanks for the clarification and advice. Not being familiar with the jargon, I had been referring to the preliminary hearing as “going to tribunal” as it’s a big step for me.

Thanks also for clarifying the role of witnesses. By hostile witness, I had meant someone who is still employed by my employer and would therefore not volunteer information willingly, but whose account, if they tell the truth, would prove my case. As it’s a discrimination case it’s very difficult to prove without covert recordings, or at least to prove that the discrimination was directly linked to a protected characteristic rather than just a personal dislike. The testimony of the “hostile” witness could help prove this.

[Sams111]

Sorry for the typos- I can’t seem to edit retrospectively…

[ULA]

Legal jargon can be somewhat confusing and yes I can appreciate that a PHR is a really bit step when you are unfamiliar with the process.

It is sometimes very difficult to get an employee to be a witness given that they are still working for the company and may have a concern about how they will be treated by the employer if they do act as a witness for you. Can you approach this person and find out first whether they would be willing and even whether what they witnessed can actually help prove your claim. I think you need to do this ground work first before trying to push them to become a witness and even then they may refuse.

The Employment Tribunal (Constitution and Rules of Procedure) Regulations do allow at Rule 32 for "The Tribunal may order any person in Great Britain to attend a hearing to give evidence, produce documents, or produce information." However this is a last resort route and the power to issue a witness order on application is discretionary.