Detailed Seminar Notes from our recent event, 'How to Cope With the Threat of Tribunal' with Mayo Wynne Baxter at the AMEX Community Stadium.

1. This
version
of
the
slides
picks
out
the
key
points
made
in
the
session
on
26
September.
The
accompanying
notes
do
not
cover
everything
that
was
discussed,
we
covered
too
much
ground,
but
will
act
as
a
prompt
with
regard
to
the
key
issues.
1

2. We
started
by
looking
at
the
raw
sta?s?cs
produced
by
the
Employment
Tribunal
Service.
The
actual
number
of
Tribunal
claims
fell
from
the
previous
year.
However,
there
are
s?ll
a
large
number
of
claims
made
each
year.
While
they
may
not
all
proceed
to
a
hearing
they
do
have
to
be
processed
and
the
Employment
Tribunal
Service
does
struggle
at
?mes
to
cope
with
the
claims
as
a
result
of
being
under
resourced.
The
cost
of
the
delays
is
paid
by
the
par?cipants
in
the
proceedings.
2

3. The
average
awards
made
by
the
Tribunal
give
a
beBer
indica?on
of
what
is
at
stake
with
claims
than
the
headlines
made
by
large
awards.
While
awards
in
excess
of
six
figures
are
possible
it
must
be
remembered
that
they
are
largely
based
on
losses.
Most
people
will
not
have
incurred
huge
losses
when
making
a
claim.
Even
when
calcula?ng
averages
we
have
to
be
careful.
The
figures
on
the
leF
represent
the
median
average.
These
are
a
beBer
indicator
then
the
mean
average
listed
on
the
right,
which
can
be
distorted
by
one
or
two
very
large
awards.
3

4. More
costs
awards
are
being
made
and
there
is
poli?cal
pressure
for
even
more
to
be
made.
The
cap
on
the
maximum
amount
that
can
be
awarded
has
recently
been
doubled.
However,
costs
are
not
awarded
as
mater
of
rou?ne
and
will
only
be
if
one
of
the
par?es
has
acted
in
such
a
way
that
the
Tribunal
considers
that
the
other
party
should
be
compensated
in
some
way.
When
compared
to
the
amount
of
claims
there
are
the
number
of
costs
awards
is
very
small.
Both
par?es
have
to
bear
the
burden
of
their
own
legal
costs
which
in
turn
influences
thoughts
on
seBlement.
The
alterna?ve
would
be
to
have
a
system,
as
in
the
civil
courts,
where
the
winner
can
claim
costs
from
the
loser.
However,
not
all
is
perfect
in
that
world
either.
4

5. 5

6. The
first
line
of
defence
is
having
sound
policies
and
procedures.
While
it
may
seem
expensive
and
?me
consuming
to
draF
them
and
follow
them
they
can
be
a
saviour
in
the
long
term.
Solid
procedures
act
as
a
guide
to
best
prac?ce.
An
employer
can
demonstrate
to
an
employee
that
they
are
doing
the
right
thing
and
this
can
help
limit
the
risk
of
the
employee
automa?cally
thinking
that
they
have
a
claim.
It
is
essen?al
to
follow
the
correct
procedure.
While
only
disciplinary
and
grievance
procedures
are
compulsory
it
helps
to
have
the
other
two
as
well.
Capability
issues
have
to
be
handled
differently
from
disciplinary
issues.
If
someone
is
genuinely
sick
then
they
should
not
be
disciplined,
a
properly
draFed
sickness
management
procedure
is
a
much
beBer
op?on.
Where
an
employee
is
not
genuinely
sick
then
the
employer
can
address
any
related
ac?ons
under
the
disciplinary
procedure
as
this
is
a
maBer
of
misconduct.
6

7. All
procedures
should
be
backed
up
by
good
notes.
If
there
is
a
mee?ng
with
an
employee
under
any
procedures
it
should
always
be
noted.
The
notes
are
essen?al
evidence
to
be
referred
to
at
a
Tribunal
hearing.
They
can
help
prevent
the
prospect
of
the
Tribunal
balancing
one
person’s
word
against
another.
However,
the
notes
must
be
clear.
If
a
Tribunal
cannot
ascertain
the
content
of
the
mee?ng
from
the
notes
then
problems
ensue.
It
is
essen?al
that
they
properly
list
the
points
at
issue
in
the
mee?ng.
They
must
clearly
show
who
said
what.
Finally,
the
conclusion
of
any
mee?ng,
and
what
is
expected
to
happen
thereaFer,
should
be
properly
noted.
7

8. We
discussed
at
length
the
problems
that
people
have
with
remembering
events.
As
humans,
we
only
really
recall
the
last
?me
we
recalled
an
event.
This
means
that
our
recall
can
change
over
?me.
Contemporaneous
notes
help
secure
the
recall.
The
longer
you
leave
making
the
notes
the
worse
the
recall
will
be.
If
a
party
has
only
made
notes
a
week
or
so
aFer
an
event
they
will
struggle
to
compete
in
terms
of
credibility
with
someone
who
made
notes
straight
away.
The
events
that
are
being
inves?gated
at
a
disciplinary
or
grievance
mee?ng
are
not
usually
recorded
in
wri?ng
at
the
?me.
GePng
witnesses
to
apply
pen
to
paper
as
soon
as
possible
is
impera?ve.
8

9. This
slide
and
the
discussions
around
it
con?nued
the
mantra
of
having
proper
notes
and
documents.
WriBen
evidence
is
essen?al.
Why
do
lawyers
keep
going
on
about
having
contracts?
Because
a
well
draFed
contract
means
both
sides
have
greater
certainty
about
what
the
agreed
terms
are.
9

10. The
ET1
is
the
Claim
Form
and
the
ET3
is
the
Response
Form.
For
the
employer
the
ET3
is
the
first
?me
that
they
get
to
put
their
side
of
the
story
forward.
A
Tribunal
will
refer
to
it
at
the
hearing.
It,
therefore,
needs
to
be
right.
There
is
only
a
limited
amount
of
?me
to
complete
an
ET3
but
?me
and
energy
must
be
spent
at
this
stage
to
make
sure
that
the
story
is
straight.
Any
subsequent
variance
will
undermine
the
case
to
be
made.
Make
sure
your
witnesses
fully
understand
that
what
they
have
to
say
at
this
stage
must
be
consistent
with
the
evidence
they
give
under
oath
at
the
hearing.
10

11. 11

12. The
burden
of
proof
in
the
civil
courts
and
the
Tribunal
is
at
a
lower
level
than
in
the
criminal
courts.
This
is
both
good
and
bad
news.
An
employer
will
be
expected
to
make
its
decisions
on
maBers
such
as
dismissal
on
the
balance
of
probabili?es.
As
useful
as
this
may
be
a
Tribunal
can
also
find
against
an
employer
using
the
same
threshold.
12

13. A
hearing
can
involve
a
lot
of
wai?ng
around.
Tribunals
will
not
see
the
witness
statements
and
documents
un?l
the
first
morning
of
a
hearing.
They
need
to
read
them
before
baBle
commences.
This
means
that
the
par?es
have
to
go
back
to
their
respec?ve
wai?ng
rooms
and
wait
for
the
reading
to
be
completed.
The
Tribunal
used
to
ask
witnesses
to
read
out
their
statements
but
this
is
now
covered
off
in
the
reading
session.
As
a
result,
the
witnesses
have
no
?me
to
get
comfortable
and
will
immediately
be
faced
with
cross-­‐examina?on
under
oath.
Witnesses
must,
therefore,
be
properly
prepared
and
fully
familiar
with
their
statement
and
all
of
the
documents
set
before
the
Tribunal.
13

14. By
way
of
illustra?on
we
looked
at
a
couple
of
cases
based
on
football,
in
keeping
with
our
venue
(the
Amex
Community
Stadium
–
home
of
Brighton
&
Hove
Albion
Football
Club).
One
of
the
cases
that
we
looked
at
was
that
of
John
Terry,
the
Chelsea
and
England
footballer.
At
the
?me
only
his
criminal
case
had
reached
a
conclusion.
We
also
looked
at
the
FA
Commission’s
outcome
on
the
Luis
Suarez
case.
Very
usefully,
this
case
set
out
how
the
Commission
dealt
the
evidence
and
the
approach
it
was
taking
to
arriving
at
a
conclusion,
something
not
usually
dealt
with
in
such
detail
in
Tribunal
judgments.
References
were
made
throughout
the
judgment
that
back
up
the
need
for
consistent
case
presenta?on
and
the
problems
that
can
result
when
different
versions
of
events
are
presented
by
the
same
side.
It
also
illustrated
how
much
can
be
read
into
the
way
a
witness
conducts
themselves
at
a
hearing.
When
it
came
to
the
John
Terry
case
we
looked
at
how
the
higher
burden
of
proof
can
influence
a
decision.
As
we
now
have
the
findings
of
the
FA
Commission
on
the
John
Terry
case
this
contrast
is
more
evident.
In
the
criminal
court
there
was
reasonable
doubt
on
the
part
of
the
Magistrate
and
John
Terry
was
acquiBed.
The
FA
Commission
was
judging
John
Terry
on
the
balance
of
probabili?es
and
found
him
guilty.
Interes?ngly
John
Terry
chose
not
to
give
evidence
in
person
to
the
Commission.
One
suspects
because
he
was
advised
that
this
may
show
up
some
inconsistencies
in
his
story
when
it
was
examined
at
the
lower
threshold.
Nonetheless,
the
Commission
shone
the
light
on
them
without
his
assistance
and
he
was
found
guilty
of
the
charges
he
faced.
14

15. These
are
only
the
highlights
of
the
changes
that
could
be
coming
our
way
with
regard
to
Employment
Law.
Further
proposals
for
change
have
arisen
out
of
the
Conserva?ve
Party
Conference.
Please
let
me
know
I
you
would
like
further
informa?on
on
the
proposals
for
change.
15

16. 16

17. 17