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Join us for a lively discussion and learn how to avoid smoking guns that can torpedo even the best laid defence.
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Webinar transcript
(Please note this is auto-generated and un-edited)
Hello, and welcome to this webinar on Tribunal Top Tips and Tactics. My name is David Brown, and I'm joined by my colleague, Esther Maxwell.
0:20
Over the course of the next 20 minutes or so, We're going to explore a number of areas in tribunal preparation and offer some really handy and practical tips on how to prepare for and attend tribunal hearings.
0:33
Now, this session has a particular focus on organizations in the education sector.
0:38
Although I'm conscious that a number of days watching may be from outside the sector, what we're going to be discussing will have equal value for you irrespective of the industry in which you operate.
0:49
That said, both astronaut education sector specialists, with many years of experience in representing universities, colleges, academies, and schools, and the employment tribunal.
1:00
OK, so without further ado, Esther, I've got my first question. For you.
1:05
You're fresh off the back of A remote hearing that you had yesterday, I think, and so what do you think parties need to be thinking about differently in terms of preparing for remote hearings.
1:19
Thank you, David. As you say, I'm fresh off the back of a remote hearing that took place yesterday. So, the software that a tribunal use is called Cloud Video Platform. And it's, it's a lot like a Zoom call or Microsoft Teams type format. But I guess what you need to bear in mind is obviously it's still a tribunal. So, the key things are that they're still in public. So, you should also be aware that members of the public may be in virtual attendance. Again, you shouldn't record or broadcast the hearing under any circumstances. And to do so, without the permission of the tribunal is actually a criminal offense if you're attending the tribunal there's a witness then you still need to give your evidence under ice. And if you'd like to do this using a religious book, you need to do a bit of organization beforehand and ensure you have the book with you and your home office.
2:16
And also, on a practical basis, as a witness, you'll have your sister or your representative should have provided you with access to the bundle.
2:25
It's really important that your, that you actually have that available to you and the best approach is to download it on another device. C So you've got it there next to whilst you're giving your evidence. But some practicalities. So the Cloud video platform, you should be opening that through Google Chrome because that tends to be how it works best. And make sure that you have Microsoft Teams or ..., does this sometimes can interfere with the camera access on your on your computer. But what I would say is that the Tribunal Clark is very helpful at getting everyone used to the technologies. And, if there are any issues, the tribunal will be there on hand to help you navigate those.
3:05
OK, I had a preliminary hearing yesterday, and the judge sets in that one.
3:10
When you are sending documents into the tribunals for a remote hearing, then you share them, I think, on some shared platform and the tribunal does, doesn't acknowledge the fact that they've received them, and apparently, sometimes people will suddenly made 10, 15 times.
3:28
Before they realized that actually, the tribunals received them to, say, one tip I've got from, from attending that preliminary hearing yesterdays, just upload them in advance at the hearing.
3:37
And then just chase up the tribunal by telephone, rather than ..., about not receiving an acknowledgment and sending them again, and again, and again, Why? they don't have an acknowledgement system. I don't know, but that you don't know. Let's say, the next question. T then. Dave, is: so tribunal's, as we know, deal with many different cases, so many different sectors, probably a bit of a trick question here, Dave. But what should we assume a tribunal knows about the particular sector that an organization is from?
4:08
Well, I mean, looking at it from the education sector, but, but also generally from any sector, I think you have to assume they know nothing. Fundamentally, there may be some sectors that they're more familiar with.
4:21
So, you know, if you're looking at retail or indices or those sorts of industry, things where, where tribunal claims are quite common, then then the Tribunal may be more familiar with things like the education sector, which can be quite nuanced, I think you have to assume very little knowledge on that part.
4:41
I had a hearing involving an academic, a university hearing, involving an academic not meeting the terms of her five year probation, and issues pertaining to the research excellence framework. And on day one, the tribunal members all made clear that none of them have even been to university at any point in their life.
4:59
So we were starting from a very, very limited amounts of knowledge about the university process.
5:06
And, you know, it may feel normal in the in the HE sector, for example, to have five year probationary periods. But outside of the HE sector, that's quite unheard of. So you have to contextualize things, I think for the tribunal.
5:21
Tribunals are not going to be familiar with the concept of academic freedom. For example, they're not going to be familiar with a sheltered university's statutes and ordinances process.
5:31
So those might need to be explained, also, just spending another moment on the education sector.
5:38
I think sometimes education clients can get quite rightly concerned by their own processes and quite complex processes.
5:45
For example, statutes and ordinances, or articles of government, and thinking that actually they're not going to be, they haven't been following values in a particular matter. And it's not going to be a massive concern for the tribunal.
5:59
But my experience that tribunals going to be much more interested in the general principles and concepts of fairness.
6:05
For example, with an unfair dismissal, there'll be looking at the general concept of fairness, rather than getting bogged down on what, at all, effectively, self prescribed processes that have to be followed. You. You may have to explain why you haven't followed them in a particular, in a particular way.
6:22
But, sometimes, I think there is a there is a risk.
6:27
The clients will focus more on their own processes and actually the concept of famous generally. And I think you've got to thinking about how a tribunal would look at it and they're going to look at it from the concept of generous, but famous generally, I think.
6:41
OK, so, I mean, obviously, you know, it's costly to go to tribunal and it takes a lot of management time and it can be a motive and all of those sorts of things.
6:54
I want one thing my clients often want to know about is whether to explore settlement, and if so, when what are your views on that?
7:03
I think considering whether to expose settlement is part of each tribunal process, really. And I think the best time to do that is early on in the process. And it's really important to do quite a thorough risk. well merits assessment early on.
7:21
So, that could be, you know, you just received the claim form. It could be, when you, when you're putting together the response, what I would say is make sure you get all the documentation of cost useless to if your list is doing the response for you. And perhaps after that would be a really good time to ask your listing, to do Amendments assessment. And basically, that would involve your list of telling you how strong your cases, what's the likelihood of, of the organization winning the case in the employment tribunal. And if perhaps there are question marks over that or if, for example, a cost benefit analysis It's going to be a lot more expensive in legal fees to fight the Tribunal. And take it all the way to fight the case and take it all the way to tribunal compared with what the claimant might be looking in. Settlement, then that would be perhaps a pointer towards exploring settlement.
8:13
It's also a good idea to think about settlement before the directions for the tribunal kick in, because obviously an organization will start incurring legal fees. So I would say it's really good opportunity at the beginning of a of a case to first do about assessment and then decide whether whether to explore assessment with the claimants also just to say it can be a bit like a game of poker. So if you do, that'll don't go even with the best offer, You could test the water with a low offer and see what the claimants expectations are.
8:48
Yeah, that that's very good advice.
8:50
I think obviously, you know, fighting case is expensive, and you might think, Well, I don't want to incur the additional cost of paying solicitors from merits assessment. But my experience that is certainly money well spent because whilst it is an initial outlay of money, it's really going to give a very clear heads up in terms of the risks and the claim.
9:11
Yeah, yeah.
9:12
So, Dave, I wanted to ask you about when we can best use unless orders or an application for strikeout during an Employment Tribunal process.
9:24
OK, we just, I suppose, taking a step back before dealing with, answering that specifically.
9:32
one thing I heard about years ago by a virus dimension that stuck in my mind, as, you know, is a phrase, is the halo effect, which is what you're going to want to do, is create a halo over your party's head Effectively for the purpose of the tribunal and make yourself a pay, You know, the beacon of compliance and all of that sort of thing. And as you said earlier, rest, there will be case management directions that both parties need to comply with.
10:04
My experiences Sometimes claimants won't want to comply with them in the same time that respondent will and they'll try and kick the can down the road.
10:15
They may be worried about costs, they, they may be worried about it, you know, taking the time to do it all, or that could be delaying tactics.
10:27
And I would be very wary of I'd be very wary of agreeing with the other party to to stay case management directions for no good reason because effectively playing into your hands. And one thing that you can do is if you've got that halo effect and you are whiter than white and, you know, you comply with everything.
10:49
When you are faced with a party, there isn't basically complying with the deadlines.
10:54
You can write to tribunal and you can make an application for what's called the lesser order.
10:58
Which means that the tribunals an issue, an order, which says, unless you do it by this certain point in the future, then the claim will be dismissed without further orders. So it's a really powerful thing to do.
11:10
But tribunals don't like policies being really heavy handed. So, I think you need to be, you need to be really compliant. I think, if you're going to make an application from less order to show that you've tried to do it, and also, you know, because of the correspondence That you have, with the other side, if you can show the other, if you can show the tribunal that you've tried by hook or by crook to get the other party to comply.
11:35
And they haven't, Then, then you can show that the the the, unless the order is is, you know, is basically, you know, an unwanted, but necessary, final step that you are taking strikeout I always think is a good idea to, to take a good look, especially with complex claims, Take a good look Early on, whether or not there are some issues in terms of jurisdiction, timing points, et cetera, and and try and streamline the claim, A lot of the time, you can be bombarded with loads of information, unclear allegations, and, again, I think it's worth the time and effort at the outset to unpick that.
12:16
Put the onus back on the claimant to actually particular us that claim better.
12:20
And then, with a discrimination claim, for example, you might put together what's called a sculpture tool and then use that as a way to point out which parts of the claim a week in which would be struck out, and that sort of thing. So, yeah, I mean, both both are definitely things that you should you should think about and should use in the right circumstances.
12:40
Thank you, Dave, on a on a slightly different subject if perhaps your there are some some issues with your case. What about conceding, liability and acclaim? Can it ever be a good thing to do?
12:54
Yeah, I mean, that's a really good question. I think it's a lot of the time. I think.
12:58
It, just, it just seems anathema and completely, you know, contrary to common sense, to think, well, that's conceit liability. But you may have a case where there are some serious issues that aren't going to be unassailable.
13:11
I had a case like that for a university, where, basically, there was friendly fire because the appeal, the appeal officer and effectively gone rogue.
13:21
Um, in that case, it was going to be very clear that the appeal was going to say, found two if not not, In fact, so we decided to concede liability because what that effectively does it short circuits, that whole process of going through the full, full liability hearing and covering all of those costs.
13:42
I'm having a bit of a soccer match between your own witnesses on a point and giving, giving. The, the claimant the feeling that they are empowered and they are, and they are holding, you have the cold, and it just takes a lot the heat out. You just say OK, we accept, we accept your unfair, we unfairly dismissed you, that can always be with caveats.
14:01
We accept we unfairly dismissed you, on a, on a, on a point of, you know, on a technicality. And then you can go to remedy. hearing.
14:08
It's much cheaper to that way, you can still have your say to remedy hearing, for example, especially in a case where you are saying, but for a technicality, it would have been a fair dismissal.
14:21
You could give evidence about that and and it avoids those adverse judgements, which I think sometimes people are very worried about.
14:30
What I would say is that I wouldn't necessarily be conceding liability and discrimination claims, because that's a bit different and you have to you have to think carefully about when to do it.
14:43
But I suppose another similar thing is conceding, Things like disability discrimination claims.
14:51
If it's clear to everybody, the claimant has brought the claim is disabled, You're only gonna really really irritate the tribunal if you incur everyone's time and expense disputing disability. So, I think you gave me something like, a disability claim, have a look at how important the issue of disability To the claim itself.
15:09
And actually, how much you can really push back on whether or not someone is disabled.
15:14
Because if that is going to be satisfied and the test is fairly low in the quote, you know the Equality Act then you're not going to make any friends in the tribunal by by fighting those points.
15:26
So, again, it is worth, is worth exploring those things. It's always worth checking these listed before you decide to concede liability though. OK, sorts of a bit similar with unfair dismissal claims, of course, one thing that a claimant can do on the claim form is tick the box that says they want to be re-instated or re-engaged.
15:48
Sometimes, I think, that can send employers, running to the hills in fear that if they got a tribunal and lose that they're gonna be, they're going to be faced with having to take this person back. It's not something they really need to worry about.
16:03
I would say probably not. As as you mentioned, it's it's often it can often be used as a weapon by claimants to in a painful to try and perhaps force the respondent to settle at a high level. But, I have to say, my experience such the tribunal very rarely makes awards for reinstatement to me, engagement. And even if they do a tribunal actually has no power to enforce such an award that, say, worst-case scenario, you know, you get to tribunal hearing and you lose. And the tribunal says, OK, you have to re-employed this person.
16:39
If a respondent men did not re-employ that person, there's a tribunal come for you to to actually, you know, to type them into your organization and give them a job. But again, they can't do that. But what they can, what the claimant can do is what the tribunal can do is make an award for non compliance. And that's under the Employment Rights Act. But in the grand scheme of things, it's not a not a huge amount. So if if you do, if you are faced with the claim where a claimant has said that they do want to come back to work and you really don't want them, then I wouldn't worry too much about that.
17:19
OK, that's re-assuring. And that was, that was the case, I think, wasn't there.
17:25
Went to the courts of appeal, involving a university where someone was saying that, you know, the pros is under the Employment Rights Act, with country to human rights. I know all of this, because we reacted in that case. But, but she wasn't successful.
17:39
So, I think the takeaway point is that, you know, the the backstop position is nobody's ever going to force a party by gunpoint to have to work with another party, And you might have to pay to get out of it, but, but, yeah, it's, that's, that's re-assuring.
17:59
Another question I suppose from me about, we've talked a little bit about settlement and, and that sort of thing.
18:06
If, if you end up in Tribune, you've tried to settlement and, you know, you have to have the day in court.
18:13
What's your approach to witness evidence? Do you think you know how many witnesses do you need this Is?
18:20
Do you want? do you want to go tooled up with loads of witnesses or is less small?
18:25
I would say less is definitely more the, I guess, like sand with witnesses is of wants to understand.
18:34
You, obviously you prepared to witness statements. But you might never really know until you see witness, understand how they're going to come across on the day with unfair dismissal claims. Often the key witnesses are just going to be the investigating officer dismissing officer and the appeal officer. So with straightforward unfair dismissal clients, often you'll only need three witnesses, discrimination claims. Obviously a bit different, and you might need more, you'll need to respond. You'll need witnesses to respond to the specific allegations that made and discrimination claim, but their evidence should only be limited to the allegations specific to them.
19:10
So, I would say, don't bring in a cast of thousands.
19:14
Sometimes that can be hostile, just to fortune and less often more, OK? That sounds like good advice to me. We've all seen, unfortunately, at least one witness, and in a case, crumble on the sand.
19:26
So yeah, I think that's, that's good advice. If you do have to have a lot of witnesses, or if you're worried about the performance of witnesses, is witness funeral? familiarization training is something that, is that something the client to be thinking about? And if so, when? When is it helpful? What kind of cases?
19:44
Yeah, I think that's certainly something worth considering. And especially if you've got a high stakes case or, you know, a big discrimination case or particularly the movie witness, it is permissible to train witnesses. But it's not permissible to coach witnesses. So there's a bit of a distinction there. I mean it can help just to kinda go through Witnessed Familiarization process, you know, perhaps suggests that they go along to an employment tribunal to see what it's like and we actually offer the bespoke training to witnesses to enable them to get their stories across effectively. So, it's certainly something worth considering if you're particularly worried about case.
20:25
Yeah.
20:26
And I suppose, but potentially more important, if you're going to be doing hearing remotely, because in the old days, if I can put it that way, your witnesses, which sometimes sit with you throughout the process, they would get to see how it works. in practice. They would sit behind the solicitors and watch the witnesses give evidence and get used to the to the surroundings and get used to the process and I suppose.
20:49
Whilst he said earlier, that with CV pay, people can kind of be that.
20:54
Typically, they not, ah, it tends to be, it tends to be sort of the church, the barest is on the witness, so they won't necessarily get as much exposure in a remote hearing as they would do in person.
21:05
It might be worth thinking about witness trading and those circumstances as well. Yeah. Yeah, Absolutely.
21:13
Dave, I want to talk to you about the importance of documentation and the employment tribunal process: Well, I mean, documentation is is key, I mean, you know, witnessed for all the reasons that you've identified.
21:28
Witness witness evidence is so much more unreliable.
21:30
It's so much less predictable and you can you can try and override things or You re repurpose or try and reposition. What happened in the past, but the contemporaneous documents speak for themselves. If it's there in black and white is going to be very difficult to write back from that. So the starting point in any case is going to be the documents.
21:50
And so I think is really important and going back to your merits assessment to get your house in order, and what I mean by that is, you know, get those documents that are relevant to the proceedings across useless to regulate, say that useless, that can have a look at them and decide if there are any without, you know, smoking guns.
22:08
And remember that with disclosure, it's, it's a duty to disclose all documents, which are relevant to the proceedings, were done, which aren't privileged, whether or not they help your case. So it's not like it's not a question of, well, that's not very helpful document. Let's not share it with the other side, You have to, You have to.
22:27
So getting those documents across this list is early.
22:29
I think fleshes out and you smoking guns and you really cringeworthy e-mails, and we've all seen them.
22:38
I had a case for a university client where the academic had argued that there was a decision taken by her line manager, which is pre-determined and biased, and there was an e-mail from that line manager to somebody else talking about something that the claimant had done wrong and they asked what they should do And he said, I'm all for retribution, soprano style. So if anyone is a fan of that, he's watching as a fan of The Sopranos de novo. He's alluding to some kind of mafia, hates on the claimant.
23:07
And you can imagine how embarrassing that wants to disclose to the other side and how they sold that has a smoking, smoking gun. No pun intended. So you have to think about that. Yeah, and there's two ways of doing this.
23:21
I think there's, There's a productivity, in terms of being proactive in getting those documents to your solicitous.
23:28
So that you do an early audit of the documents, and then there's a productivity in terms of training as much as you, as much as you possibly can. I'm a realist, and I know that these things aren't easy. But trying to educate your, you know, your employees and the people that you work with that.
23:48
Things are disposable, things are disclosable and tribunal proceedings.
23:53
The tainos obtainable, sometimes, prior to disclosure through a subject access request. So, people do get to see these things.
24:01
so, what might seem funny in an e-mail is not as funny when you've got the church in and, and, and, you know, viruses staring down at you in cross-examination. So.
24:14
It's really, really important that you just remember that whatever you put to writing, you will be able to be in a position to explain, and if that, that's e-mails, it's text messages, it's everything.
24:28
Yeah, Oh, Thank you! ... Is really important, is, you know, I agree. I think we've all had cases that have been ... by the documentation sometimes. So, leading on from documentation, could you explain a bit about the concept of privilege in relation to documentation, because not everything is disclosable, is it?
24:52
Yeah, so, I mean, the topic of privilege is probably a topic in itself, so I'll just, I'll simplify it here.
24:59
And really, for the purposes of today, just focus on, on really legal advice, privilege as legal advice, privileged as litigation privilege and without prejudice privilege. But it can serve quite a good purpose.
25:14
Basically, the position is that if something is covered by privilege, then he's not disclosable in the proceedings. So any without prejudice discussions don't get referred to, and you don't have to disclose the legal advice that you've received.
25:29
So, again, going back to the audit point, I think you would want to check over the documents to make sure that you are not inadvertently sharing anything that you don't have to share.
25:41
And secondly, can you use privilege as a kind of shield or a weapon?
25:48
And what I mean by that is, when you've got a case that lots of people, lots of people are contributing to, it could be about an investigation report. It could be about the outcome letter.
26:02
And you've got various people that are involved in that chipping in those exchanges internally, with HR, with the people that were the chair, or the panel, whatever. The role disposable.
26:15
So if you have, if you have a letter, which is becoming diluted or is actually firming up and going in a different direction, then that could be used against you in the proceedings, because you'd have to disclose all of those drafts.
26:26
And you'll be aware of the ramp felt case, which made the news a few years ago, where HR was deemed to be influencing the investigating officer in a case more than it should have done.
26:38
And that was, that was through looking at, you know, what had happened to that investigation report, once HR, it had input on it. So, you need to think about that. And one way that you can get around that is when you're taking legal advice.
26:54
And you have to be taking legal advice. Economies, be copying somebody, and when you are, when, when, you're in the course of taking advice.
27:00
That is privileged. So, if you were to be including your semester, this is not a plug to try and get you get involved in the case earlier. It's a really, really important. And a really useful tip if you were to include a solicitor in terms of them providing important a letter.
27:17
Or commenting on what other people have said. Then, all of those discussions is then protected by privilege and it means you don't have to disclose them.
27:24
And I think that sometimes people don't realize that you do have to disclose all of those drafts, whether or not they make it to the final bundlers a different thing, but you have to disclose them all, and sometimes, that can be a lot of, you know, a lot of pitfalls in doing that.
27:42
So after all, that's scaremongering up to half an hour already. So, I suppose it would be probably a good time.
27:50
We could talk about this all day, but we could, we could move to any Q and A that people who are watching have got so remaining. Have we got any questions?
28:02
Yes, we do have a few questions, So the first question is: What is the difference between coaching and training? A witness sounds like a raw file.
28:14
Teach.
28:16
I'll go I'll go first with that one. Coaching and Training witness.
28:22
Training a witness is talking to them about the process that's going to be followed.
28:27
You can explain what giving evidence is about, what their rights are, in terms of giving evidence.
28:35
The tricks and techniques that are going to be used by by the barest, if you the other side, who is cross-examining, Um, who's cross-examining the witness.
28:46
So, say, for example, a, a very typical, cross-examination technique is to ask closed questions, where, you are trying to get the witness to either answer, yes or no. And, what you're effectively doing is trying to corner them. So that then you put the killer question at the end and they can only answer in the way that you want because they've answered yes or no to everything earlier.
29:05
So explaining to the witness, you know, the tricks and the techniques which are used, whatever evidence is there for all of that sort of stuff is, is witness training.
29:16
Witness coaching is telling him, is telling the witnesses what answer they need to give.
29:23
So, typically, when you are training a witness, you are not dealing with the facts in the case, when you're coaching a witness. You're dealing with a focus in the case. And you're saying, well, you're going to be getting asked this question. And for heaven's sake, don't answer this because that's going to undo it. So this is what you should say. And that's witness coaching.
29:42
There is there is a whole host of case law about witness coaching, and it is permissible to use solicitors to do witness training.
29:51
We would always make sure the people doing the witness training weren't involved in the case and didn't have the details of the case themselves. So they couldn't be seen to be coaching witnesses. So that's probably the main distinction. So what is the award for non compliance for reinstating an employee at an impeachment trial?
30:11
A technical question.
30:13
I would have to say, whenever we do this, you always have to go back. And you have to have a very, very complicated formula which is set out in the Employment Rights Act. And I, off the top of my head, I can't remember actually the, that particular provision.
30:30
It basically, from memory, so don't quote me on this, please.
30:34
It basically, there is a ... element to, to it.
30:42
if somebody receives less than the statutory cap for compensation.
30:46
So you'll know with, you know, with unfair dismissal claims, that the cap for compensation award is either that person's annual salary, or the statutory cap, which is currently around £85,000, whichever is the lower amount. If you fail to comply with in order for re-engagement grant statement and actually what they received is less than the statutory language, about 5000.
31:09
Then the penalty payments are applied above, but up to a maximum of the statutory cap.
31:16
So actually, that's why sometimes you don't end up paying very much by way of a particular penalty payment. But the answer to the question and I'm recalling a little bit.
31:29
But the answer to the question is, it is dependent on actually what, what, what the value of the claim is.
31:35
Because it's a formula that's applied with reference to, well, they wouldn't have received had they, you know, under an unfair dismissal award.
31:44
Thanks, David. We have here someone has asked about judicial mediation.
31:50
So despite having been to a number of employment tribunals they've never undertaking judicial mediation, ..., yep, I can answer that one, say, judicial. Mediation, I think case is can be quite useful process to go through. So, basically, it's free, and it's mediation, written by a judge and pre covert Germany take place at at at an employment tribunal, and each party would be in different room and the judge would shuttle between the parties, Now, they tend to take place over the telephone.
32:29
And, basically, the way it works is, each policy will present a position statement about what they can to achieve through judicial mediation. And, then, the judge will mediate between the parties to try and reach some solution, or agreement, can be particularly useful. If you've got an employee who's bought and employment tribunal claim.
32:50
And that employee is still employed by, I had one, a few months ago, which was a discrimination claim, a disability discrimination claim, and it was a, an academic who was actually autistic and that beam, I guess, difficulties and communication between this particular academic and her manager and, and people of the organization. And she felt that she wasn't getting the answers that she went to Social and Employment tribunal claim and the process of going through digital mediation mediated by a judge actually helps the parties come to some resolution. And you can agree.
33:30
It's not just about compensation with with with the mediations. You can agree other stuff. So, as part of that settlement, it was things like, you know, agreeing how to communicate with this particular individual. So, in certainly, discrimination cases where an individual is still employed by you, they can be really useful. I don't know if, David, do you have any anything to add to that?
33:54
Know, I was actually, I was always finding the provision in the employment rights re-instated whilst you can ask. the same question about that. Is, if you look at section 1, 1, 7, it sets out, it sets out the old, what happens that? But, no, I think with G two judicial mediation.
34:15
You know, it's only as good as the judge, I think.
34:18
That's true and, and both parties have to have to go with a view to compromise. If if you are, if you're basically just paying lip service, it's just a waste of time. You have to go and you also have to have all authority.
34:34
You know, you They always ask you to make sure you've got somebody who's got authority from from your party that can authorize it, and they need to be available, because it doesn't move very quickly.
34:48
So, yeah, I always say, I think mediation is a really good thing, because I think there's no obligation to settle on the day.
34:56
But it's a really good, it's a really good intelligence gathering exercise if you don't set when you've always got a cast conciliation afterwards to get the deal done, but you're going into that knowing, knowing a bit more.
35:08
Yeah, another thing, actually, just to bear in mind, is sometimes that can be useful if you've got a particularly unreasonable claimant. Having a judge, do the mediation, who's, you know, seen as an independent arbiter. Who knows Employment? No one has has some gravitas can be useful in talking some sense into the claimant. So that's something to bear in mind.
35:32
Thank you guys, and we've got another question Is preliminary advice for me liaising with in-house legal counsel privileged?
35:43
Um, I can very quickly answer that. I think, which is, yes, If it's, if it's if it's advice.
35:50
If, if you're just copying in, um, if you're just copying in in house counsel to discussions, but in enhanced counts, in-house, counsel is not actually providing any advice whatsoever. And you'll just copying them and said that they look, because they're involved, and therefore, its legal privilege.
36:09
It isn't really it isn't really goes back to what what the test is for legal advice privilege, which is it has to be the provision of legal advice. And if that's provision of legal advice with in-house counsel, fine. If you're liaising with in-house counsel about something, but they're not providing advice and you're talking about something as a colleague, not necessarily.
36:28
So it's about what they're saying, and the purpose while you're involving them.
36:36
We have a couple of questions left.
36:37
So, when would it be appropriate to give cost warnings in improvement tribunal proceedings?
36:47
Has to do internal? Yep, yep. Sure. I mean, costs warnings are useful to put the pressure on them and generally they can be used.
36:59
If, if you're opponent, is behaving unreasonably, if they're not complying, plying the directions, if you know them, they're taking points that aren't relevant and said, yes So they can be a useful tool in your armory in terms of employment, tribunals mitigation, when you are making a costs warning. You need to as the keys and the title, you need to warn your opponents that you're planning to make across the board. And normally that's, you know, done through a letter. You explain the basis of the custom board and then inform them that they also inform how much the cost of all just want you to be.
37:46
They can be quite useful in terms of potentially trying to get the claimant to drop the case. So, you could say, Look, you know, we've, we think are unreasonable, and bringing this claim if you drop the case, we won't pursue for costs. Yeah, so, they can be quite useful.
38:07
Yeah.
38:09
So, we've got another question. If you're a new came and only wants to do judicial mediation, reinstatement is an option: can you proceed even if the employer would not want to the state?
38:24
Yeah, I think you can proceed with the mediation. I mean, the purpose of mediation is to try and reach agreements that both parties are happy with.
38:33
So I guess that would be the job of the judge to deal with that. So if the claimant is saying, no, I want I want green stipend. And the employer is saying, nope, that's not going to happen then I guess it depends on the circumstances of the case as to whether that's a deal breaker or not.
38:52
The judge will try and use their skill to try and reach a compromise that which might be difficult in those particular circumstances, but certainly it might not just be about that. I would say, you know, it's worth engaging and judicial mediation with a bit of an open mind, but also having your, your red lines. The lines that you incur costs. And if reinstatement is one of those, then it's perfectly valid to have at, and then go into the judicial mediation without approach.
39:21
Yeah, And just to add to that, a couple of things. Firstly, judicial mediation has to be approved by the regional employment judge. So it doesn't just happen. So if you express as a preliminary hearing that both parties want to pursue judicial mediation, that will be a short preliminary hearing, which is held by the Regional Employment Judge, to decide whether or not it's appropriate to allocate that judicial resource to the particular case. And if that hearing, the early one is very clear that there are unassailable issues such as the claimant wants to be re-instated, the response under no circumstances can re-instate. And there is no movement from that. It won't get to sit down for judicial mediation.
40:04
I don't think, but I do agree with us that if you go, if you overcome that hurdle, what you do, is you, you set out a, in a statement of desired outcomes at the beginning. And, again, you can have two red lines there.
40:18
But another technical point, I suppose, is that reinstatement or re-engagement, are concepts associated with unfair dismissal claims. And judicial mediation is generally only open for discrimination claims. So it would depend if there was a discrimination element to the claim that was being brought.
40:36
Because if it is a simple unfair dismissal claim, then I don't think dates and the tribunal would allow judicial mediation.
40:45
Thanks, David.
40:45
And just one more question. Yeah, last question.
40:52
Is it really worth exploring early conciliation through a cast?
40:58
Um, good question. When it has to happen.
41:04
The claimant has to go through indicated early conciliation in order to bring a claim. A lot of the time it is a bit of a robust stumping exercise. And sometimes respondents don't even know about it.
41:16
But generally, I would say, going back to Esther's settlement point, uh, it makes sense to try and explore at an early stage, Just so you've got the information, and you're armed with the information as you go forward with the claim. And if it's very clear from the outset that the claim is looking for is unrealistic, you've got that information. But, equally, if you know it's going to cost you £10000, £20,000, £30,000 to defend the claim, and the client is looking for three or £4000, then maybe you explore that right at the outset. before you, even though the legal fees.
41:49
So, from that point of view, I would never just never discount it.
41:54
Um, but a bit like judicial mediation, I do think that I can consider this to an extent, Tony, as good as the conciliator.
42:03
Anything you'd add that's thrown out on the on?
42:06
I'd agree with that, OK, great, so is that all the questions remain?
42:13
Yeah, that was all of them.
42:14
Lovely.
42:15
OK, well, that brings us to the end of this webinar and I hope you found it useful and relevant. If there is something you would like further information on or have a specific query on any matter that you'd like to discuss and please do let us know and we'll be happy to help.
42:31
Otherwise, on behalf Vesta, thank you, Esther and me. Thank you very much for joining.
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