Advocacy and Outrageous Allegations

We usually do our own advocacy in employment tribunals, rather than pass on the case to someone else, for four reasons:

  1. To avoid duplication of effort.
  2. A case may well be better prepared for tribunal by a solicitor who is going to do the advocacy himself/herself, rather than pass it on to someone else.
  3. Continuity of relationship. A Tribunal hearing is a stressful experience and clients often value working with someone they know, rather than another lawyer at tribunal.
  4. A solicitor who knows what goes on at Tribunal is likely to give better advice right at the beginning, since he/she knows what judges are looking for.

What if a client wants to put in his witness statement allegations that the respondent employer dishonestly “set up” his dismissal? I usually advise against allegations of bad faith, because:

  • “opinion” evidence is generally inadmissible
  • Tribunals are reluctant to believe that witnesses are lying – they are more likely to be mistaken (‘cock up’ rather than ‘conspiracy’)

This fits with the wise words of Lord Bingham of Cornhill, the late senior law lord, quoted by Lord Mackay of Clashfern at a thanksgiving service on 25 May:

“The effective advocate is not usually he or she who stigmatises conduct as disgraceful, outrageous, or monstrous but the advocate who describes it as surprising, regrettable or disappointing.”

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