At our seminar on 16 September, GQ Employment Law and James Laddie QC (Matrix Chambers) looked at why it is that companies lose employment cases, both as Respondents in Employment Tribunal Claims and as defendants (or indeed claimants) in the High Court.
Killer point no 1: The facts are wrong - and you look like the bad guy so the tribunal does not like you.
- The most convincing witnesses won’t help you if they’re telling you what the other side wants to hear. It’s very difficult to overcome the fundamental merits of the case – sometimes, it’s just better to settle.
- Sometimes, those merits are not just about whether you meet the specific legal test the judge is applying. They are also about the morality of your case. Although judges operate within the framework of law and legal analysis, they are also human beings. This means they have their own prejudices, “bêtes noires” and also like to side with those who they believe are the “good guys”.
- The time when these “human factors” are most important is when you are looking at a finely balanced legal argument which could be successfully argued two ways. The law should not strictly be about the morality of a situation, but often it actually is. It is for this reason that in any given situation if you do what looks like the reasonable thing (and feels right from a moral perspective) you are more likely than not to be operating legally (and you will be more likely to get a tribunal or a judge on your side).
Killer point no 2: You’ve destroyed the evidence.
- The main point here is about destroying the evidence that can help you win the case. Obviously no one does this on purpose - but sometimes people do it accidentally.
- Just starting up a laptop used by an employee under suspicion can destroy useful information about its recent use. In the right circumstances, a forensic IT expert can recover information about recent files and folders viewed, the memory sticks connected to the computer, and so on. All of this can be vital to showing a court that you have good grounds to believe your ex-employee has acted unlawfully.
- While you can lose a case by destroying evidence accidentally, it’s even easier to lose by destroying evidence deliberately. If you have deliberately destroyed documents relevant to the case (or even deliberately failed to preserve them – e.g. if emails are being automatically deleted after a certain number of days.) and a judge gets wind of that, then you could face sanctions from the court, and your chances of winning the case will take a hit as well.
- James Laddie described a case he had worked on where his client had attempted to destroy a laptop by throwing it into a pond owned by a local farmer. After obtaining a witness statement setting out the co-ordinates of the pond, the other party to the litigation sent frogmen into the pond to recover the computer. After treating the laptop in an alcohol bath, forensic IT experts successfully recovered over 60% of the information on the device.
Killer point no 3: We don’t have the right documents in the right place at the right time.
- It is useful to consider how judges go about making their decisions. Of course they look at the manner of the people giving evidence, and consider how the plausibility of the case being put forward. But they are also trained to look closely at the contemporaneous documentation, and they tend to accord great weight to these documents.
- If the email trails don’t confirm what your witnesses say, that hurts your credibility. If an email exchange supports what you are saying in a witness statement a judge is more likely to believe you. Documents are therefore extremely important in the presentation of a case, and having good control of at the very least the key documents is essential. Cases are won and lost on the documents you disclose – so it’s important to get that right first time.
- Cases often settle after disclosure because either documents show that what you are saying is correct in which case a claimant has to back down, or they provide a problem which means that you have to increase an offer.
- James Laddie emphasised the importance of clients understanding and fulfilling their disclosure obligations. He described an ongoing trial where he had asked the (individual) claimant whether she had had her disclosure obligations explained to her by her solicitors. Surprisingly, she said that she had not. This lead to an order from the Tribunal for the review of several thousand emails from her personal email account (which she had not provided to her solicitors), all to be conducted that evening to prevent the delay of the hearing.
Killer point no 4 - Your witnesses are incompetent, lying, too eager to please, or gone.
- You’re probably tired of your lawyers telling you that litigation involves a lot of risk – but it is true. The other side of that is that winning a case also involves a lot of luck in winning a case. Often, it’s not anything you did that lost the case – it was just bad luck on the day. One of the main ways that luck manifests itself is with your witnesses. Even the strongest case in the world, it can all unravel on the witness stand.
- You can’t always choose your witnesses, and sometimes you can’t avoid calling people who you would rather not represent your company. Witnesses can have a lot of problems – they can have terrible memories, be badly prepared, or even be deliberately lying (perhaps unconvincingly). Or they might have moved jobs in the months or years since the events of the claim, and be unwilling to spend hours talking to their old boss’s lawyers.
- Perhaps more commonly, they might be so eager to help you win the case that their answers wander off the point and into traps laid by your opponent’s barrister – tripping them up and undermining your case.
- There are some ways to avoid some of these problems. Firstly, it is always worth making sure that witnesses know what to prepare themselves for when they are giving evidence. In particular, what judges really hate is the politician’s answer - i.e. an answer to a question which was not asked, or flannelling around the question which was asked. It is better to say something which is unhelpful but that is a true and a direct answer to a question.
- The other trap that witnesses often fall into is giving too much information above and beyond what has been asked. If your barrister feels you should give more information he or she will have an opportunity to ask for you to elaborate on an answer.
- It is important that witnesses understand that a Judge will always be more convinced by the witness who accepts unhelpful (but true) points than one who gives consistently self-serving answers. Otherwise, you risk witnesses thinking they are helping you when they are doing the exact opposite.
- So witnesses are one of the most important parts of winning (or not losing) your case, and they can have a lot of problems – but with careful preparation, most of them can be avoided.
Killer point no 5: No-one cares enough – or the wrong people care about the wrong things.
- Cases are won when people focus on the events of the claim at an early stage, so that the company can present a consistent and true account through the defence, the documents, statements and finally trial. To do that, the relevant people have to apply themselves to recalling and recording the facts at an early stage. Indifference can lead to signing off on inaccurate defences that must later be amended, or witness statements that witnesses won’t support at trial.
- Sometimes documents are not disclosed to the lawyers at an early enough stage. Sometimes, that focus only comes from in house legal or (in employment cases) HR, when really it needs to come from the decision-makers involved. And sometimes people are so focussed on something else – for example, the chutzpah of the claimant in bringing such an outrageous claim – that they fail to focus on what’s really important. Any of these pitfalls can lead to defeat.
- Of course the lack of caring at an early stage can have a number of reasons. Those responsible may simply not have the time when the court or tribunal requires the deadlines. It may be that people never expected the case to fight so they did not want to invest much at an early stage to save cost. The case might not be worth caring about too much and the cost of doing early preparation and checking documents might be disproportionate.
- There may be any number of valid reasons, but if they are correct perhaps the case should not be fighting. If there is any chance the case will fight then people need to care and invest at an early stage.
What you should do to try to win a case…..
- It is worth remembering that fighting a piece of litigation is like fighting an election campaign. You need a strong team and a strategy.
Preparation, preparation, preparation
- Careful and thoughtful planning and preparation can mean the difference between winning and losing a case. We have an example of a case which was won by one side (through careful preparation) spotted an inconsistency in the chain of events which meant that things could not have been as both sides claimed. Each side claimed different things, but they were both wrong! That was spotted on one side and not the other. The side that spotted it won the case.
Understand that your lawyer is writing for the judge and not really to the other side!
- It is also important to remember that your lawyers will be thinking all the time about how it will look in court and what a judge will think. Correspondence will be written to the other side, but it will be written from the point of view of being read by a judge. Things will be written so a judge will think they are reasonable.
- It is crucial to ensure that your witnesses know the documents and are clear on what their role is when giving evidence so that they come across as being helpful and credible. This will lend weight to their evidence. Witness training (including a mock cross-examination) is increasingly common for larger cases, and one attendee at the seminar commented that he had found that this very useful.
Of course sometimes companies are just unlucky!