1. SERN/EHRC Conference 2015 Running the case – a practical guide to preparing a discrimination case for the Employment Tribunal Presented by Peter O’Donnell Thompsons, Solicitors Chairman, Scottish Employment Rights Network

2. Initial Interview  Basic info Name, address, start date, end date, job title, wages, DOB  The story Let client talk – fill in blanks later Chronological Who is everyone?  Hierarchy, job titles  Documents What do you need and what does client have? Correspondence, minutes of meetings, contractual documents Quantification  Wage slips, evidence of mitigation, benefits, new job etc

3. Case Plan  What type of discrimination?  What evidence do you have and what do you need? Witnesses Documents Medical evidence  Strengths & weaknesses  Time limits

4. Gathering further info  From client/witnesses  Medical evidence Start early Get medical records ID appropriate expert  From employer May be crucial No questionnaire procedure but can still ask

5. Disclosure from employer  Confirmation  Investigation  Disclosure  Tactics Don’t  Write “War & Peace”  Get too involved in legal basis Do  Focus questions on important issues  Consider what you want out of response  Think tactically

6. Confirmation  What facts do you need confirmed?  What other facts might assist?  Ask employer to give their version Eg “If you don’t agree X, why not?”

7. Example - dismissal  Previous disciplinary record  Date of disciplinary hearing  Date decided to dismiss  Date communicated dismissal  Reason given for dismissal

8. Example - recruitment  Date applied for job  Date of interview (if relevant)  Date decided not to offer job to claimant  Date decision communicated to claimant  Number of vacancies

9. Investigation  What do you need to know from employer?  What facts might help you in assessing case?

10. Example - dismissal  Evidence in support of reason for dismissal  How other people treated in same circumstances  What bearing did protected characteristic have on decision  Revelant breakdown of current staff

11. Example - recruitment  Details of other candidates (eg qualification, experience and sex/race/age etc) Can be anonymised  Selection criteria  How did claimant not meet criteria?  How did successful candidate meet criteria?

12. Disclosure  Documents Contract, handbook etc Relevant policies (eg Equal Opportunities) Minutes of meetings  Other information Relevant breakdown of employee EO training provided to decision makers

13. Example - dismissal  Contract of employment  Disciplinary procedure  How many people of different characteristics dismissed in last 5 years?  Equal Opportunities policy

14. Example - recruitment  How many people of different characteristics in relevant job?  Recruitment policies  EO training given to interview panel

15. Quantification  Do it as early as possible – estimate Need idea of value of case ACAS Early Conciliation Will be ordered by ET – get ahead  Heads of compensation Actual loss Injury to feelings Physical/psychological damage Fees/expenses Compensation for other claims (eg basic award for unfair dismissal)  See if other side willing to agree quantification May need to lead evidence (eg injury to feelings, mitigation)

16. Lodging claim  Make sure:- Grievance procedure followed ACAS EC done  Time limits 3 months less one day from act of discrimination  Act of discrimination is date when act decided upon by employer  Use earliest possible date Act continuing over a period  Individual incidents  Needs to be sufficient link between individual incidents People involved, conduct concerned etc

17. Pleading the case  Set out story of case in chronological order  Set out primary facts offering to prove Don’t plead evidence Facts from which you say ET should draw inference of discrimination  Set out statutory basis of claim

18. Reviewing the ET3  What has been conceded (if anything)? Factually Legally  What is in dispute?  Ask client for their comments

19. Preparing for hearing - witnesses  Is there anyone who can speak to issues in dispute? What will they say? Precognose them  Don’t call witnesses for sake of it No character witnesses! Don’t call witness to speak to issue not in dispute – could contradict Do you need more than one person to speak to same matter  Expert witness Is one needed? Joint expert preferred  ID expert with other side  Joint letter of instruction Any concessions to be made once report received

20. Preparing for hearing – Documents  What documents do you need & not have Request from other side – seek order from ET Need to be specific  No fishing expeditions ET may order disclosure of all documents by each side – English style disclosure  Joint bundle Usually prepared by respondent

21. Preparing for hearing – Further Information  Do you know what employer’s defence is? Entitled to know case you have to meet  Is there other information you need? Confirmation & Investigation More restrictive than pre-action Needs to be relevant to pled case

22. Tribunal process  Preliminary Hearing Agenda Needs to be completed  Preliminary Hearing (Case Management) ID any jurisdictional issues  Time limits, disability etc  Some issues could only be dealt with at Full Hearing Confirm statutory basis of claim Length of hearing  ID number of witnesses  Always over-estimate Dates for hearing  Come with available dates Timetable for preparation  Exchange of documents  Joint bundle  Use of witness statements Any Orders needed