Effective Advocacy in Discrimination Claims in the Employment Tribunal

Ken McGuireWestwater Advocates &

3PB, London

What we’ll do today

• Journey from door of the tribunal to victory.• Examine what happens at a hearing in the

employment tribunal.• Identify how to get the most out of witnesses

in examination in chief and conduct effective cross examination.

• Consider the merits of the use of witness statements in discrimination claims

What we’ll do today

• Be aware of specific issues involved in discrimination cases, e.g., comparators and remedies, and how to present evidence of discrimination.

• Tips for preparing and delivering effective legal submissions.

The tribunal hearing

• Order of tribunal proceedings: who goes first? And does it matter?

• Order of proceedings in discrimination claims.• What happens if there is a discrimination

claim and a claim for unfair dismissal?• What is the position in equal pay claims

against public authorities and/or private bodies?

The tribunal hearing

• When should you seek an order for witness statements and am you likely to get it?

• Compelling witnesses to attend to give evidence: how do you do it and is it worth the risk?

• Relevant V. irrelevant evidence in discrimination claims.

• What evidence is admissible evidence?

Tips for effective tribunal advocacy

• Identify the issues in the claim• Based on the Paper Apart to the Form ET1,

what have you ‘offered to prove’?• What evidence do you need to prove what

you have ‘offered to prove’?• Which of your witnesses will provide that

evidence?

The tribunal hearing

• Tribunal judges in discrimination cases quite often ask the claimant’s representative at the outset to set out the main issues in the claim.

• No need to present a detailed ‘opening speech’ but you must be able to identify succinctly the basis of the claim(s) and the most important documentary evidence.

• Failure to do so is likely to create a negative impression with the tribunal.

Examination in chief

• Position when using witness statements• If no witness statements, crucial to have a

precognition from each of your witnesses.• Examine you witness by short ‘open’ questions.• As much as possible, rely on documentary evidence.• Do not use ‘leading’ questions ((i.e. a question

which suggests the desired answer) on matters that are contentious (i.e. not agreed between the parties prior to or at the hearing).

Examination in chief

• Essential that your witnesses cover all the factual elements of the claimant’s claim

• In discrimination claims (and in other types of claim) no need to ask ‘legal’ questions, e.g. “in your opinion does this or that amount to indirect discrimination”?

• But claimant should give evidence as to why he or she thinks they have suffered discrimination.

Examination in chief

• Essential that at close of claimant’s case the tribunal has a good idea of how and why the claimant says he or she has suffered discrimination.

• If not, the claim is very likely to fail and there may be expenses implications.

• Cannot rely on respondent’s witnesses offering ‘gifts’ to substantiate claim, no matter how good your cross-examination.

Examination in chief

• Can also use examination in chief to deal with the main elements of the respondent’s case.

• E.g. ask you witness “It may be suggested to you on behalf of the respondent that this or that happened. What do you say to that?

• Or, as your witness “The tribunal may hear evidence from the respondent that this or that happened. What do you say to that?”

Examination in chief

• This is a useful technique because it gives your witness the opportunity to cast doubt on the the respondent’s case.

• But be careful: you must be sure that your witness will give an answer that supports the claim!

• Witnesses sometimes have a tendency to agree with questions put to them by their own legal representatives so they must know that this type of question is coming.

Examination in chief

• Under NO circumstances should you ask your witness a question like: “You may hear evidence from the respondent’s witnesses that this or that event took place. That is not correct is it?”

• This is a leading question and asking it will not create a good impression with the tribunal.

Leading your witness

• “Objection, the prosecution is attempting to lead the witness!”

Cross examination

• Questions should be leading questions, e.g “This or that happened on this date. Do you agree?”; “When you discovered that the claimant was pregnant, you said “Oh no, not another one”, is that correct?”.

• Aim of cross examination is to get evidence from the respondent’s witnesses that supports the claimant’s case.

• You should always be in control in cross examination. Under No circumstances should you be rude to or become involved in an argument with the witness.

Cross examination

• It is essential in cross examination that you ‘put your case’.

• This means putting the factual basis of what the claimants says amounts to discrimination to the witness

• E.g. in ‘reasonable adjustment’ claims, once what the respondent did or did not do has been established, you should ask the question “you could have taken this or that step?”; “the claimant asked you to take this or that step but you failed to do so?”.

Burden of proof in discrimination claims

• Equality Act 2010, s. 136(2( and (3)“(2) If there are facts from which the court COULD decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court MUST hold that the contravention occurred.“(3) This does NOT apply if A shows that A did not contravene the provision”.

Burden of proof in discrimination claims

• 2 stage process• First stage:- the claimant must establish on the balance

of probabilities a prima facie case of discrimination.• Second stage:- if the claimant does this (and ONLY if

the claimant does this) does the burden of proof then shift to the respondent.

• Key case:- Hewage v Grampian Health Board [2012] ICR 352. See also Igen Ltd and Others v Wong [2005] ICR 931 and Madarassy v Nomura International plc [2007] ICR 867.

Comparators in Discrimination Claims

• Discrimination claims are usually comparative in nature, e.g, I was treated less favourably than my male colleague because I am a woman.

• Essential to have appropriate comparator(s) in mind at the outset of a hearing.

• Tribunal will expect a claimant’s representative to identify the comparator(s) relied upon at the outset of a hearing.

• There could be expenses implications if a wholly inappropriate comparator is relied upon.

Comparators in Discrimination Claims

• Comparator will differ depending on the type of claim being brought.

• Which protected characteristic is being relied upon?

• Which type of discrimination is being claimed?• Direct discrimination: the comparison must be

between like situations.• Indirect discrimination: what is the provision,

criterion or practice relied upon?

Comparators in Discrimination Claims

• ‘pool’ approach in indirect discrimination claims• Disability discrimination• ‘discrimination arising from disability’, EqA s. 15.• Advantages of pursuing a ‘DAD’ claim.• Duty to make reasonable adjustments, EqA s.

20.• Comparison in s. 20 claims.

What can be claimed and who is the appropriate comparator?

• A suffers from a disability under the EqA 2010. A suffers from an illness that means she has had substantial periods off work in the past 2 years. A’s absence is such that it has triggered her employer’s Attendance Policy and she has been given a “Written Improvement Warning”. This is potentially very serious because it means that a further period of unauthorised absence could result in her dismissal. A seeks your advice

Comparators in Discrimination Claims

• A seeks your advice because she thinks ‘she has been discriminated against because of her illness’.

• A tells you that the Attendance Policy allows for certain periods of absence to be disregarded on disability grounds and although that this was done in her case, because her periods of absence were lengthy, she still received a “Written Improvement Warning”.

Comparators in Discrimination Claims

• What claims can be brought?• Who is the appropriate comparator for each

claim?• See, Griffiths v Secretary of State for Work and

Pensions UKEAT/0372/13/JOJ.

Remedies in Discrimination Claims

• Important to have in advance a detailed Schedule of Loss.

• Loss is assessed in delictual terms• If there is a claim for unfair dismissal and

discrimination, claimant can choose the assessment of loss most favourable to him/her.

• Injury to feelings: the correct assessment.• are discrimination awards liable to tax?

Effective Legal Submissions

• If possible, particularly in discrimination claims, prepare a written submissions (respondent’s representatives usually do)

• Important to set out ‘findings’ in fact that you want the tribunal to make

• Important to address differences between the evidence of the parties and to give reasons why the tribunal should prefer the evidence of your witnesses above the evidence of the respondent’s witnesses.

Effective Legal Submissions

• Set out the relevant legal provisions with reference to key case law and statutory provisions

• Be prepared to run an ‘esto’ case: i.e even if the tribunal does not make all the factual findings you are asking for, there is still discrimination because…

• Apply the law to the facts as ‘established’ (or as to how you say they should be established) to demonstrate discrimination (and success)!