In the complex world of UK employment tribunals, effective case management is crucial for a smooth and efficient process. Michael Salter, a Leading Junior in employment law and Fee-Paid Employment Judge in the South-West Region, offers valuable insights in his seminar “How to Win Friends and Influence Judges.” This article explores key takeaways from Salter’s approach, providing practical guidance for legal professionals and Litigants in Person (LiPs) alike.
The Overriding Objective: The Foundation of Case Management
At the heart of effective case management lies the overriding objective of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1[2]. This aims to deal with cases fairly and justly, including:
- a) Ensuring parties are on an equal footing;
- b) Dealing with cases proportionately to their complexity and importance;
- c) Avoiding unnecessary formality and seeking flexibility;
- d) Avoiding delay, so far as compatible with proper consideration of the issues;
- e) Saving expense.
Salter’s Rules: A Framework for Success
Drawing inspiration from Isaac Asimov’s Laws of Robotics, Salter proposes three fundamental rules for case management[1]:
- A representative may not injure the tribunal process or, through inaction, allow the process to come to harm.
- A representative must obey the orders given it by the process except where such orders would conflict with the First Rule.
- A representative must protect its own existence as long as such protection does not conflict with the First or Second Rules.
These rules provide a framework for navigating the often-pressured environment of UK employment tribunals.
Practical Tips for Effective Case Management
- Thorough Preparation: Prepare a comprehensive case management agenda Include often overlooked items such as dates to avoid, mediation, and Early Neutral Evaluation (ENE) Be prepared to identify issues and relevant paragraphs in the ET1/ET3
- Timely Communication: Send documents like lists of issues at least a week before the hearing This can increase chances of converting in-person hearings to more efficient telephone hearings
- Realistic Time Estimates: Provide sensible estimates to avoid part-heard cases or reserved judgments Break down estimates to show consideration of all aspects: jurisdiction, qualification, liability, and remedy
- Effective Lists of Issues: Cross-reference issues to specific paragraphs in the ET1/ET3 Break down broad issues into specific points Consider relevant case law guidance for complex areas
For protected disclosure claims, follow the guidance in Blackbay Ventures v Gahir [2014] IRLR 416. For discrimination cases with numerous incidents, refer to Hendricks v Metropolitan Police Commissioner [2003] IRLR 96. For reasonable adjustments claims, consider Environmental Agency v Rowan [2008] IRLR 20.
Avoid Overloading:
- Keep pleadings focused and relevant
- Be wary of over-burdening pleadings. The Employment Appeal Tribunal has recently deprecated the practice of pleadings being long discursive documents that do not identify the relevant parts of the cause of action.
- Include enough factual matter to establish the legal claims without excessive detail.
- Be cautious with boilerplate pleadings. Consider their appropriateness, particularly when dealing with issues like justification. As Salter notes, “all too often the Grounds of Resistance raises justification without saying what the legitimate aim even is”.
Building a Positive Reputation
Consistently demonstrating high-quality case management can pay dividends. As Salter notes, Employment Judges communicate with each other, and developing a positive reputation can lead to increased trust and credibility in future cases[1].
Appealing Case Management Orders
Be aware that it’s notoriously difficult to overturn case management decisions. The rules may seem permissive, but case law is not. In Goldman Sachs Services Ltd v Montali [2002] ICR 1251, it was held on appeal that varying an order in the absence of any change of circumstances was ‘a wrong exercise of discretion and wrong in principle’. More recently, in Serco Ltd v Wells [2016] ICR 768, the Employment Appeal Tribunal effectively stated that it is rare for a tribunal to vary a case management order.
The Goal: Smooth Proceedings
When considering case management principles, a good starting point is the statement by Mummery LJ in Martins v Marks & Spencer plc [1998] IRLR 326. He stated that the aim of case management should be “to allot a realistic slot in the list to ensure an uninterrupted hearing of the whole case, without damaging disruptions which had occurred in the present and other cases”.
Conclusion: The Path to Mastery
Mastering case management in UK employment tribunals requires a nuanced combination of legal knowledge, meticulous preparation, and effective communication. By adhering to Salter’s guidance, legal professionals and Litigants in Person (LiPs) can navigate the tribunal process more efficiently and build a reputation for competence.
Key takeaways include:
- Thorough preparation: Always have a comprehensive case management agenda ready, including often-overlooked items like dates to avoid, mediation options, and Early Neutral Evaluation.
- Timely communication: Aim to send documents, particularly lists of issues, at least a week before hearings. This proactive approach can increase the chances of converting in-person preliminary hearings to more efficient telephone hearings.
- Realistic time estimates: Provide well-considered estimates that account for all aspects of the case, from jurisdictional issues to remedy considerations.
- Effective lists of issues: Cross-reference to specific paragraphs in the ET1/ET3 and break down broad issues into specific points, guided by relevant case law.
- Avoiding overload: Keep pleadings focused and relevant, steering clear of long, discursive documents that fail to identify key points.
It’s crucial to remember that effective case management not only aids the smooth running of proceedings but can also build goodwill with Employment Judges – a valuable asset in any legal career. As Salter notes, Employment Judges talk, and developing a positive reputation can lead to increased trust and credibility in future cases.
Ultimately, the goal is to become the representative that both clients and Employment Judges can rely on in their “hour of need”. This means being prepared, professional, and always mindful of the overriding objective to deal with cases fairly and justly.
By consistently demonstrating high-quality case management skills, legal professionals can significantly enhance their effectiveness in employment tribunals, potentially leading to better outcomes for their clients and a more efficient tribunal system overall.
Acknowledgement: This article is based primarily on the seminar “How to Win Friends and Influence Judges” by Michael Salter of 42 Bedford Row. I gratefully acknowledges Salter’s expertise and insights in the field of UK employment law and tribunal procedures.
References:
- [1] Salter, M. (2024). How to Win Friends and Influence Judges.
- [2] Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1.
- [3] Martins v Marks & Spencer plc [1998] IRLR 326.
- [4] Barwell, J. (2024). The Psychological Toll of Legal Battles: A Litigant in Person’s Journey. LinkedIn. https://www.linkedin.com/pulse/psychological-toll-legal-battles-litigant-persons-journey-barwell-3eore/
- [5] Barwell, J. (2024). The Ethics of Narrative Manipulation in Legal Practice: Lessons from the Burnetts Solicitors Case. LinkedIn. https://www.linkedin.com/pulse/ethics-narrative-manipulation-legal-practice-lessons-from-barwell-0zhwc/
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