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WITNESS STATEMENT OF JASON GARFINKLE
1. I [1] ........................ (be) a forty-seven year old dentist and live at 15 Gray’s Inn Road,
London. I make this statement concerning a road traffic accident I [2] ........................
(witness) at the junction between Regent Street and Oxford Street, London, on Friday
21 September 2007. At approximately 4.00 p.m. that day I [3] ........................
(drive) along Oxford Street towards Oxford Circus. It [4] ........................ (be) a lovely
afternoon and the sun was shining. I [5] ........................ (come) back from a dental
conference at Earl’s Court Exhibition Centre and was [6] ........................ (head) into
the West End of town to buy a birthday present for my wife. I [7] ........................
(drive) behind a blue Honda Accord motor car which [8]........................ (travel) at approximately
30 miles per hour.
2. As I [9] ........................ (approach) Oxford Circus I [10] ........................ (can) see that the
traffic lights [11] ........................ (show) green. The aforesaid Honda motor car [12]
........................ (proceed) through the traffic lights and I [13] ........................ (begin) to follow.
I then suddenly [14] ........................ (catch) sight of another vehicle off to my right, a
silver Ford Galaxy. It [15] ........................ (head) at high speed along Regent Street
towards the Honda in front of me. I [16] ........................ (can) see that the driver of the
silver Ford [17] ........................ (hold) a mobile telephone. He also [18] ........................
(appear) to be having an argument with the woman sitting in the front passenger seat
of the vehicle. He was clearly not paying attention to his driving or the traffic lights,
which were showing red from his direction. The Ford [19] ........................ (come) straight
through the traffic lights into the junction between Oxford Street and Regent Street.
3. The driver of the Ford then [20] ........................ (brake) hard but his vehicle skidded
straight into the driver’s door of the blue Honda. I was able to stop just in time to
avoid also being involved in the collision. I have no doubt that the driver of the silver
Ford was entirely to blame for the accident.
I believe that the facts stated in this witness statement are true.
Signed
Dated
Preparing for trial
The legal profession in England is sometimes described as a ‘two-tier profession’.
That is because there are two categories of lawyers, namely:
 Solicitors
 Barristers
Most advocacy in English courts is conducted by barristers, who can be thought of
as specialist court lawyers. Solicitors can also appear in court. More commonly
however a solicitor will fulfil the role of taking instructions from a client and
preparing the case. The solicitor will then instruct a barrister to provide the actual
representation in court on behalf of the client. These instructions are provided in
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The following is a template for a brief to counsel on behalf of Nicholas Tiessen in the case of
N. Tiessen v M. Gluck and Londinium Delivery Co. Ltd. Complete this brief to counsel, providing
relevant details in under 50 words under each heading.
Exercise 3 – brief to counsel
IN THE CENTRAL LONDON COUNTY COURT CASE NO. CL4 34756
BETWEEN:
NICHOLAS TIESSEN Claimant
And
MATTHEW GLUCK 1st Defendant
And
LONDINIUM DELIVERY COMPANY LIMITED 2nd Defendant
BRIEF TO COUNSEL
Counsel has herewith:
(1) Particulars of Claim and Defence
(2) Statement of Jason Garfinkle dated 10 December 2007
(3) Various correspondence between the parties’ solicitors
Instructing solicitors act for the Claimant in this matter. Counsel is instructed to appear
on behalf of the Claimant at the forthcoming trial, listed for hearing over two days at
Central London County Court on 15 and 16 February 2008. This is a personal injury
claim relating to a road traffic accident on 21 September 2007.
ACCIDENT DETAILS
The circumstances of the accident are as follows:
writing to the barrister in a document prepared by the instructing solicitor called a
‘brief to counsel’. This is known as ‘briefing counsel’, barristers being referred to in
court as ‘counsel’.
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DETAILS OF CLAIMANT’S INJURIES
The details of the Claimant’s injuries are as follows:
EVIDENCE
The following details appear to support and strengthen the Claimant’s case:
The following details are conceivably detrimental to the Claimant’s case:
CONCLUSION
The Claimant has good prospects of success because:
.........................................................
Stringwood & Evans
Solicitors for the Claimant
Part 2  Civil litigation
Addressing the court
Advocacy also involves certain inter-personal skills, including non-verbal communication
(NVC) or ‘body language’. The following is a checklist of principles you
should bear in mind in order to become a good and persuasive advocate.
 Enunciate words clearly and speak with sufficient volume
 Address the court at an appropriate pace, ensuring that you do not speak too fast
or too slowly
 Modulate the tone and pitch of your voice to maintain the Judge’s interest
 Use the correct mode of address to the Judge (i.e. ‘Your Honour’ or ‘Your Lordship’
etc.)
 Adopt a suitable posture (for instance do not slouch or put your hands in your
pockets)
 Use appropriately formal language (neither pompous nor too colloquial)
 Demonstrate courtesy, a professional manner and ensure a smart appearance (do
not make personal comments for instance about the opposing advocate!)
 Avoid distracting mannerisms (such as hand or arm movements)
 Maintain reasonable eye contact with the Judge (while being aware that in some
cultures eye contact is regarded as threatening or disrespectful)
Advocacy practice will develop your advocacy skills, which in turn will increase your confidence
in using legal English. Now imagine that you are a barrister who has been instructed to appear
in court tomorrow on behalf of the Claimant in a case against a motor car manufacturer. You
have received the following brief to counsel from your instructing solicitor. Read this brief to
counsel. Then plan and write out several cross-examination questions to put to the defendant’s
managing director on behalf of the Claimant. (Remember to make these leading questions.)
GOOD PRACTICE TIP: Firstly determine the answers you wish to obtain and then formulate questions
which will result in the witness providing the desired answers. Try to keep your questions short.
Exercise 4 – advocacy preparation
IN THE KINGSTON UPON THAMES COUNTY COURT CASE NO. KT4 18932
BETWEEN:
FERNANDO ESTEBAN Claimant
And
HYPERFORMANCE SPORTS-CARS LIMITED Defendant
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BRIEF TO COUNSEL
Counsel is instructed to act on behalf of the Claimant at the forthcoming trial of this action.
The basic details of the case are as follows.
The defendant manufactures a range of expensive handbuilt sportscars, including a
model known as the ‘Mephisto’. The Claimant purchased one of these ‘Mephisto’ models
six months ago, at a cost of £40,000.
The Claimant was injured on 14 August 2007 whilst driving this newly purchased
vehicle. The Claimant sustained serious injuries. In particular a broken wrist, fractured
collar bone, broken index finger and concussion. The facts of the accident are as
follows.
The Claimant was driving his ‘Mephisto’ car towards Oxford on the M4 motorway at
a speed of approximately 70 miles per hour. The car has an automatic gearbox and top
gear was engaged. Suddenly the car engaged reverse gear, causing rapid deceleration
which resulted in the Claimant’s injuries.
The Claimant therefore contends that his injuries were caused as a direct result of the
defendant’s negligence. Also, that the vehicle was not of satisfactory quality, this being
an implied term of the Claimant’s purchase contract with the defendant pursuant to
section 14(2) of the Sale of Goods Act 1979. Counsel is therefore instructed to argue that
the defendant is liable to the Claimant for damages for personal injury and for other financial
losses incurred. The latter amount to £10,000, representing the cost of a replacement
gearbox (£4,000) and lost earnings of £6,000 (the Claimant being an accountant
and having been off work for four weeks).
Instructing solicitors have arranged for a consulting engineer to attend court tomorrow
to provide expert evidence confirming that the car suddenly engaged reverse gear.
It is the Claimant’s case that this clearly establishes negligence on the part of the defendant,
since a car should not suddenly go into reverse gear while travelling at 70 miles
per hour!
Indeed instructing solicitors believe that the defendant knew about this fault in the
gearboxes it fits to the ‘Mephisto’ models. In particular, there have been several press reports
of similar accidents having occurred in England and in the United States, whereby
the car has suddenly engaged reverse gear. Counsel is therefore asked to raise this matter
with the defendant’s managing director in the course of cross-examination.
Counsel should also be aware however that the defendant strongly denies liability,
contending that the accident was caused as a direct result of the Claimant’s own negligence.
The defendant does not dispute that the vehicle went into reverse gear immediately
prior to the accident. The defendant alleges however that this was due to the
Claimant negligently engaging reverse gear while travelling at speed, thereby inevitably
causing the accident. This is vehemently denied by the Claimant. The aforementioned
engineer who will be attending court has therefore been asked for his expert
opinion regarding this allegation. Unfortunately however the engineer has concluded
from examining the gearbox that it is impossible to state with any degree of certainty
whether the Claimant changed gear or whether the vehicle ‘slipped’ into reverse gear
due to a mechanical fault in the gearbox.
Counsel is instructed to endeavour to persuade the court to find in favour of the
Claimant and to award damages for personal injury and the other losses outlined
above.
Delaney & Co.
Solicitors for the Claimant
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If you are working with others then undertake the ‘Group Exercise’ below. Alternatively, if you
are working on your own then undertake the ‘Individual Exercise’ below. Both exercises relate
to the case above of Fernando Esteban v Hyperformance Sports-Cars Ltd.
GROUP EXERCISE
Task 1
Allocate the following roles between yourselves:
 Counsel (i.e. barrister) for the Claimant
 Counsel for the defendant
 The Claimant
 The Defendant’s Managing Director
Task 2
Role-play the trial of Fernando Esteban v Hyperformance Sports-Cars Limited by adopting the
following procedure:
1. Person playing role of Claimant’s counsel conducts examination in chief of the Claimant.
This should be aimed at setting out the Claimant’s case. Claimant answers counsel’s questions,
improvising with further sensible facts as appropriate in addition to using the details
provided in the brief to counsel.
2. Person playing role of Defendant’s counsel cross-examines the Claimant, with a view to
discrediting the witness and/or his evidence. The cross-examination should also ‘put the
Defendant’s case’. (E.g. that the Claimant caused the accident by carelessly engaging reverse
gear himself.)
3. Person playing role of Defendant’s counsel then takes the Defendant’s managing director
through his evidence in chief. Person playing role of the managing director answers counsel’s
questions based on facts provided in the brief to counsel above and by improvising
with further facts and information as appropriate.
4. Counsel for Claimant cross-examines the managing director, seeking to repudiate the witness’s
evidence and to ‘put the Claimant’s case’ to the witness. (Including for instance
that there was a gearbox fault.)
5. Defendant’s counsel makes a short ‘closing speech’, summing up the arguments and evidence
in support of the Defendant’s case and seeking to dispute the Claimant’s claim.
6. Claimant’s counsel makes a short ‘closing speech’, summing up the arguments and evidence
in support of the Claimant’s case and seeking to contradict the Defendant’s version of events.
If there are more people available then you can add further parts to the role-play, i.e. a further
person could play the role of the expert witness (the consulting engineer). You should then decide
which party will call this further witness for examination in chief, counsel for the other party
then conducting cross-examination. A further additional person could play the role of the Judge
and decide the case, announcing his or her finding to the court! Everyone present should watch
and listen carefully throughout the ‘trial’, taking note of the evidence presented to the court.
Exercise 5 – advocacy practice
Try to arrange your group as follows for the role-play:
JUDGE
WITNESS (Claimant/Defendant’s M.D./Engineer
CLAIMANT’S COUNSEL DEFENDANT’S COUNSEL
Task 3
Ask one of your colleagues to provide you with feedback on your advocacy performance by
completing the following feedback form for you. Alternatively, use this form to provide feedback
to one of the advocates on how you assessed his/her advocacy performance.
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ADVOCACY FEEDBACK FORM
Provide feedback by grading the advocate’s performance under each of the following
criteria on a scale of 1 to 5 (1 = unsatisfactory; 2 = poor; 3 = average; 4 = very
good; 5 = outstanding).
 Advocate enunciated words clearly
 Advocate spoke at sufficient volume
 Advocate spoke clearly, avoiding long silences and hesitations
 Advocate used language persuasively and expressed herself/himself clearly
 Advocate avoided distracting mannerisms
 Advocate varied his/her tone and pace in order to retain court’s interest
ADDITIONAL EXERCISE: Role-play the car crash case of Nicholas Tiessen v Matthew Gluck and
Londinium Delivery Company Limited in a similar manner to the role-play exercise above. This
will require you to agree as a group who will play the following roles:
 Counsel for the Claimant
 Counsel for the Defendants
 The Claimant (Nicholas Tiessen)
 The independent witness (Jason Garfinkle)
 The First Defendant (Matthew Gluck)
(Witness and lawyers should use the diagram of the locus (scene) of the accident, p.78, to assist
with describing events in this exercise.)
INDIVIDUAL EXERCISE
Task 1
Presume that you are acting as counsel for the Claimant in the case of Fernando Esteban v
Hyperformance Sports-Cars Limited. Plan and write out examination in chief questions aimed
at eliciting the Claimant’s evidence concerning the following:

 The Claimant’s description of the accident
 The Claimant’s version of events as to the cause of the accident (the fault in the gearbox)
 The Claimant’s response to the allegation that he was at fault for putting the car into reverse
gear while driving at high speed
 Details of the Claimant’s injuries and other losses
Task 2
Prepare and write out questions to put to the Defendant’s managing director in cross-examination
in order to put the Claimant’s case concerning:
 The alleged cause of the accident (the gearbox ‘slipping’ into reverse uninitiated)
 The alleged prior knowledge of a fault in the gearbox of the ‘Mephisto’ model
Task 3
Prepare a short ‘closing speech’ on behalf of the Claimant, setting out your arguments and referring
to the evidence in support of your client’s claim.
Task 4
Read out loud the closing speech you prepared in task 3. Ask a friend or colleague to listen to
you and then fill in the feedback form at the end of task 3 of the group exercise above for you.
Alternatively, self-assess yourself by candidly filling in the feedback form yourself. Keep these
criteria and feedback in mind as you further develop and practise your advocacy skills.
ADDITIONAL EXERCISE: Carry out a similar exercise to the one above based on the car crash
case of Nicholas Tiessen v Matthew Gluck and Londinium Delivery Company Limited as follows.
Task 1
Prepare examination in chief questions to ask the Claimant (Nicholas Tiessen) aimed at eliciting
the Claimant’s evidence concerning:
 The Claimant’s description of the accident
 The Claimant’s allegations as to why Matthew Gluck was responsible for the accident
 Details of the Claimant’s injuries
Task 2
Prepare and write out questions to put to Matthew Gluck under cross-examination in order to
put the Claimant’s case concerning:
 The allegation that Matthew Gluck drove through a red traffic light
 The allegation that Matthew Gluck was using a mobile telephone
 The allegation that Matthew Gluck was arguing with his passenger
Task 3
Carry out Tasks 3 and 4 in the first individual exercise above.
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Modes of address
The case you have been considering in this chapter is a County Court case. The correct
mode of address to a Judge in the County Court is ‘Your Honour’. Here there is no difference
in expression between using the vocative case (i.e. addressing the Judge as if by
name) and the accusative case (i.e. instead of ‘you’).
Higher value cases are heard in the High Court, where a Judge should be referred to as
‘My Lord / Lady’ or ‘Your Lordship / Ladyship’. Here there is a difference between
the vocative and the accusative case. In particular, ‘My Lord / Lady’ is the equivalent of
the Judge’s name (representing the vocative case), whereas ‘Your Lordship / Ladyship’ is
the equivalent of ‘you’ (i.e. the accusative case). It is however permissible to combine
both modes of address in one statement or sentence. For example: ‘My Lady, my client
has appeared before your ladyship previously.’ In addition, when referring to the Judge
in the third person the expressions ‘His Lordship / Her Ladyship’ and ‘His Honour / Her
Honour’ are used. Thus an advocate would say to a witness: ‘Please indicate to His
Honour using this diagram where you were standing when you witnessed the assault.’
A barrister addresses or refers to a fellow barrister in court as ‘My learned friend’ and
to a solicitor as ‘My friend’ (vocative case).
Law notes
Question forms
Use non-leading questions during examination in chief (unless the facts being referred to
are not in dispute). These are usually ‘open’ questions (i.e. can be responded to with a
wide variety of answers e.g. ‘What did you see?’). Such questions can begin with pronouns
such as ‘who’, ‘what’, ‘why’, ‘where’, ‘when’ and ‘how’ and combined with an auxiliary
verb to request information (e.g. ‘did’, ‘has’ or ‘was’). The question is created by inverting
the subject and auxiliary verb. Note however that when the question word is the
subject then the auxiliary ‘do’ should not be used. E.g. ‘Who said that?’
Use leading questions for cross-examination. These are generally ‘closed’ questions
(i.e. which limit the scope of possible response, thereby enabling more control over the
witness). E.g. ‘When did the accident occur?’ Aimed at eliciting specific information from
a witness, leading questions often start with words such as ‘did’, ‘was’ and ‘were’. Such
auxiliary verbs can be placed before a noun in order to invoke a ‘yes’ or ‘no’ response.
(E.g. ‘Did you see the accident?’)
Remember that a question sentence can also be ended with a preposition. (E.g.
‘Where was the defendant coming from?’) In addition, a question can be conveyed by
means of the intonation in one’s voice. A rising tone towards the end of a question can
thus ‘signal’ a leading question in particular. (E.g. ‘You saw the Ford collide with the
Honda, didn’t you?’)
Grammar notes
102
Chapter 10 Employment law
Learning Objectives
By completing the exercises in this chapter you will:
 Consider language and grammar appropriate to an Employment Tribunal
 Consider reported and direct speech within the context of employment law
 Use appropriate vocabulary in the course of negotiating an employment law case
 Undertake language practice in the course of an unfair dismissal claim
 Acquire an appreciation of the law of unfair dismissal and Employment Tribunal practice
and procedure
Unfair dismissal
There is a statutory right in English law not to be unfairly dismissed from employment,
as provided by s. 94 Employment Rights Act 1996. An employee normally
requires at least one year’s service with his or her employer in order to be eligible to
pursue an unfair dismissal claim. This qualifying period does not apply however in
discrimination cases (such as dismissals based on race, sex, disability, sexual orientation
or religious/belief discrimination). There is a three-month limitation period
(commencing from the date of dismissal) for issuing a claim for unfair dismissal. The
venue for hearing unfair dismissal claims is known as an Employment Tribunal (ET).
The law of unfair dismissal
To defend an unfair dismissal claim an employer must firstly satisfy the Employment
Tribunal that the employee was dismissed for a legally acceptable reason pursuant to
s. 98 of the Employment Rights Act 1996 (ERA). This includes for instance conduct,
capability (including ability or professional qualifications) and redundancy.
A large percentage of unfair dismissal claims are defended on the basis of the employer
contending that the dismissal was justified on the first of these grounds,
namely conduct. In order for a dismissal on the ground of conduct to be fair in law
as opposed to unfair, it must be a reasonable response to the conduct in question.
Alternative possibilities should have been considered by the employer (such as a
written warning or demotion as opposed to dismissal).
If the ET determines that the reason for dismissal does not come within s. 98 ERA
then it will make a finding of unfair dismissal. If however it is satisfied that dismissal
was for one of the legally acceptable reasons it will then consider whether
the dismissal was fair in all the circumstances. This involves consideration of
whether the employer adopted a fair procedure in the course of dismissal. Including
for instance taking into account whether:
 A disciplinary hearing was held prior to dismissal
 The employee was provided with the opportunity to explain his or her version of
events
 The employee was provided with a right of appeal
Employment Tribunals have been provided with instrumental guidance on how to
approach misconduct cases in the case of British Home Stores v Burchell 1980 ICR,
which held that the ET should consider:
‘... whether the employer ... entertained a reasonable suspicion amounting to a belief in the
guilt of the employee of that misconduct at that time.’
This does not mean that the employer must prove guilt but rather:
(a) genuine belief that the employee is guilty of the alleged wrongdoing;
(b) that the employer had reasonable grounds upon which to sustain that belief;
(c) that the employer had carried out as much investigation into the matter as was
reasonable in all the circumstances.
An Employment Tribunal is empowered to award damages for losses such as loss of
earnings and other benefits (e.g. health insurance) to a Claimant successfully establishing
a claim for unfair dismissal.

Chapter 10  Employment law
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Listed in column 1 below are the first parts of six complete sentences. Complete the sentences
by matching each part with its corresponding final part in column 2. The first one is
done for you by way of illustration.
Column 1 Column 2
1. Section 94 of the Employment Rights Act within three months.
1996 provides
2. An employee normally requires one year’s service investigate the circumstances.
3. An unfair dismissal claim must be issued to be eligible to claim unfair dismissal.
4. An unfair dismissal claim is heard at state his case when considering dismissal.
5. An employer should permit an employee to the legal right not to be unfairly dismissed.
6. An employer suspecting misconduct should an Employment Tribunal.
Exercise 1 – composition
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Employment Tribunal case
You have been consulted by a new client named Charles Edward Scoville. Charles
has been dismissed recently by his employer, a firm of solicitors named Bannerman
and Law. You have agreed to issue legal proceedings on his behalf for unfair dismissal.
Read the following statement of your client, which your secretary has just
completed typing for you in readiness for issuing proceedings in the Employment
Tribunal. (Assume that today’s date is 5 May 2007.)
IN THE EMPLOYMENT TRIBUNAL
BETWEEN:
CHARLES E. SCOVILLE Applicant
and
BANNERMAN AND LAW (a firm) Respondent
STATEMENT OF THE APPLICANT
I, Charles Edward Scoville, of 18 Lower Richmond Road, Putney, London, SW15,
hereby states as follows.
1. I am the applicant in these Employment Tribunal proceedings. I commenced employment
with the Respondent on 16 March 2003. I was based at the firm’s Head Office
at 11 The Strand, London, WC2, where I worked until 26 April 2007 as one of a
team of four legal cashiers.
2. On Monday 26 April 2007 I arrived at the office at approximately 8.50 a.m., to start
work as usual at 9.00 a.m. I had just parked in the firm’s car-park and was entering
the building when I noticed Mr Henry Moore, the firm’s Managing Partner, running
towards me. He appeared very angry. I was then very taken aback as he grabbed my
arm while stating to me ‘You’re dismissed as of now Scoville. I want your office
keys. Don’t think you’re going anywhere, the police are on their way!’
3. I tried to explain to Mr Moore that I had done nothing wrong and didn’t understand
what all this was about. I was given no details at this stage of what I was being accused
of. All I knew was that I was being summarily dismissed.
4. It was only when the police arrived that I began to get an explanation. Detective
Constable Clouseau told me that I was being accused by Mr Moore of stealing several
million pounds of client monies. I was astounded by this. I stated in reply that I
would never dream of doing such a thing. I have worked as a legal cashier for a
number of prestigious legal and accountancy firms in the city and have an unblemished
record for my professionalism and honesty.
5. D.C. Clouseau then asked me ‘How do you account for the new Ferrari sports-car
sitting out there in the car-park then?’ I explained that I had been the very fortunate
winner of a large sum of money on the National Lottery several days previously. At
that time the only purchase I’d made from my winnings was the Ferrari, a vehicle I
have longed to own since childhood. Ironically I was intending to continue with my
job at Bannerman and Law since I love my work. I also explained this to D.C.
Clouseau and his colleague, Police Constable Capriati.
6. The following day I received a letter in the post from Bannerman and Law confirming
my dismissal with immediate effect along with a cheque for my salary up to and
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105
including Monday 26 April 2007. The letter was signed by Henry Moore. That day I
visited the offices of Chameleon, who run the National Lottery. There I provided
Mandy Renwick, Chameleon’s Chief Executive, with authority to disclose information
to the police confirming my win. When I went to the police station the next day
I was relieved to be informed by the police that they had concluded their enquiries
and were now satisfied that there were no criminal charges for me to answer. They
had received written confirmation from Mandy Renwick that I had indeed recently
won the lottery.
7. I have subsequently written a letter to Bannerman and Law asking for an appeal hearing
against my dismissal. I want the opportunity to be heard and to explain to the firm
that I am entirely blameless. I have not however received any response to my letter to
date. I have many friends there and miss their companionship very much. Nevertheless,
I no longer want to work for Bannerman and Law after the way I have been treated.
8. The contents of this statement are true to the best of my knowledge and belief.
Signed
CHARLES E. SCOVILLE
Date
Answer the following:
1. State the commencement date and termination date of Charles Scoville’s employment with
Bannerman and Law.
2. What was Charles Scoville’s job title with Bannerman and Law?
3. What reason was Charles given for his dismissal?
4. Is the reason given for dismissal one of the legally acceptable reasons for dismissal? If so,
which one?
5. What led the Senior Partner to believe that Charles had stolen from the firm?
6. What explanation has Charles provided for the allegation made against him?
7. What proof has Charles obtained in support of his explanation?
8. State in a few sentences why you would contend that Charles has been unfairly dismissed.
Exercise 2 – comprehension
The following document is an application form used for submitting a claim for unfair dismissal
to an Employment Tribunal (ET). Boxes 1 to 10 of this application form have been completed on
behalf of Charles Scoville. In order to complete the form however it is necessary to set out details
of your client’s unfair dismissal claim in box 11. Finalise the drafting of this section of the
form by selecting the most appropriate form of each verb from the modified verbs in italics.
Exercise 3 – drafting

106
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Chapter 10  Employment law
Part 2  Civil litigation
108
CHARLES E. SCOVILLE v BANNERMAN AND LAW
SECTION 11
1. I to begin / beginning / began [1] employment with Law and Bannerman (‘the Respondent’)
on 16 March 2003. I employing / was employed / to employ [2] as a legal
cashier, worked / to work / working [3] in a team of four within the Respondent’s accounts
department. My work principally involved double-entry book-keeping of the
firm’s client account and client ledgers. The Respondent is an international law firm,
have / having / to have [4] several overseas offices.
2. At my annual appraisal meeting in March 2007 I was telling / to tell / told [5] by my
manager that management were very pleased with my work. I was to give / given /
give [6] a pay rise to reflect this. I have never received any disciplinary warnings.
3. However on Monday 26 April 2007 I arriving / to arrive / arrived [7] at work as usual
at about 8.50 a.m. I am in the habit of driving / drove / to drive [8] to work since there
is a staff car-park. I had just parked and was to enter / entering / enter [9] the building
when I was suddenly confronted by Mr Henry Moore, the Respondent’s Managing
Partner. He started shouting / shout / to shout [10] at me. I was shocked and confused.
Then he suddenly to tell / told / tell [11] me I was sacked. I tried to reason
with him but he was too angry to listen.
4. Shortly after that the police arrived / arrive / to arrive [12]. They inform / to inform /
informed [13] me that I was being accused of stealing a large amount of money from
the Respondent. I told Detective Constable Clouseau that was absurd. I to explaining /
explained / explain [14] that I had done nothing wrong. The police subsequently
accepted this and discontinued their enquiries.
5. I was nevertheless summarily dismiss / to dismiss / dismissed [15] on Monday 26 April
2007 for alleged gross misconduct. I therefore respectfully contend / contending / to
contend [16] that I have been unfairly dismissed. There was no valid nor acceptable
reason for my dismissal.
6. My dismissal was also procedurally unfair. In particular I was not granted a
disciplinary hearing. I was therefore to deny / deny / denied [17] the opportunity
providing / to provide / provide [18] an explanation. In addition I have been denied an
appeal hearing.
Notice of appearance
The Employment Tribunal (ET) imposes a time-limit of three weeks on an employer
in which to respond to an employee’s claim for unfair dismissal. The correct form
for providing this response is known as a ‘Notice of Appearance’.
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109
Now assume that you are a lawyer in the Employment Law Department of a law firm called
Weir and Company. Weir and Company has been consulted by Bannerman and Law, who intend
to resist the unfair dismissal claim issued against them by Charles Scoville. Read the following
statement by Henry Moore, the Managing Partner who dismissed Charles Scoville. Then
complete the following Notice of Appearance form on behalf of Bannerman and Law by setting
out in box 7 of this form the Respondent’s case. You should take into account the details provided
in the Managing Partner’s statement when completing these details. (Finally check your
answer with the suggested draft in the Answer Key).
Exercise 4 – drafting
IN THE EMPLOYMENT TRIBUNAL CASE NO.
BETWEEN
CHARLES E. SCOVILLE Applicant
and
BANNERMAN AND LAW ( a firm) Respondent
WITNESS STATEMENT OF HENRY J. MOORE
I, Henry Jason Moore, of 48 The Meadows, Westminster Village, London, hereby states
as follows,
1. I am Managing Partner of the Respondent. The Respondent is a commercial law firm
with forty partners and approximately two hundred associate solicitors. We have regional
offices in Piraeus, Kuala Lumpur, Moscow and Monte Carlo. We act mainly
for clients with shipping and aviation acquisition, financing and litigation work.
2. On Monday 26th April at approximately 8.30 a.m. I was in a meeting with the Chief
Executive of Image International, the advertising agency the firm uses. This was taking
place in my office at Bannerman and Law's Head Office premises at 11 The
Strand, London. Suddenly we were interrupted by Joan Winter, my personal secretary.
Joan informed me that Geoffrey Hamilton, our Chief Accountant, needed to
speak to me very urgently. I therefore took Geoffrey's telephone call straight away.
He sounded very upset and it soon became clear why. The Finance Department had
just discovered that an unauthorised withdrawal of two million pounds had been
made from the firm's client account at some time during the weekend. Geoffrey and
his department were desperately trying to ascertain where the money had gone.
3. I immediately concluded my meeting with Gordon Manderson, Image International's
Chief Executive. I was very concerned about what Geoffrey Hamilton had
told me. I knew the situation was a very serious matter as far as the firm was concerned.
Our professional body, The Law Society, had to be informed in accordance
with our rules of conduct. Indeed I spent nearly an hour on the telephone that
morning speaking to Janet Adamson, the Senior Officer in the Professional Ethics
Department at the Law Society. She was only persuaded not to send a full team of
investigators into our office that day as a result of me providing a personal
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Part 2  Civil litigation
undertaking. An undertaking that I and my fellow partners would restore the missing
funds in client account from our personal resources by close of business that day.
4. I then convened a video conference between the partners in London and the overseas
offices. We agreed at that time that it was crucial to find out who had misappropriated
the funds in order to assure clients of the continued integrity of the firm.
During the video conference I switched on the television in the conference room
and was horrified to see a report on the local news programme about Bannerman
and Law, solicitors and the missing £2 million.
5. As I was moving back from the television to the conference table I glanced out of
the window. That was when I saw Charles Scoville, one of our cashiers, pull up in
the carpark driving a new Ferrari 355. I knew at that moment we had found the
culprit. It was obvious for anyone to see. Charles joined Bannerman and Law several
years ago and there's no way his salary would have enabled him to drive such
a vehicle.
6. So I excused myself from the meeting and ran downstairs to reception. Charles was
just coming into the building when I got down there. I went straight up to him and
confronted him. I shouted at him that he was dismissed with immediate effect and
that I wanted his office keys. He looked very taken aback and pale as he handed
me his office keys. He was clearly upset but said nothing in reply, convincing me
further he was the thief of the £2 million.
7. Pauline, our receptionist, also looked surprised at what was going on. I told her to
telephone the police and to ask them to send an officer round straightaway to arrest
the man we now knew to be the thief of the £2 million. I then waited with
Charles Scoville to make sure he didn’t escape. Charles kept asking what this was
all about but I refused to enter into a discussion with him. I simply replied, ‘You
know what this is all about.’
8. Detective Constable Jack Clouseau arrived shortly afterwards along with Police
Constable Anne Capriati. I was surprised that they did not immediately arrest
Charles. Instead they explained to him he was not under arrest and asked him if he
would nevertheless voluntarily answer a few questions. Charles said he was happy
to do so and that he just wanted someone to explain to him what was going on.
9. I told D.C. Clouseau not to be fooled by him, but he and his colleague then went
into a nearby interview room with Charles Scoville. After telling a few clients
who'd been passing through reception what had happened I then went up to the
Human Resources Department. There I instructed the Head of Personnel to send a
letter out in the post to Charles Scoville that day confirming his dismissal and enclosing
a cheque for his salary up to that day. The letter also stated that the firm
would be taking legal proceedings against him for return of the money. I then went
back upstairs and congratulated myself on finding the culprit by pouring myself a
glass of wine from the drinks cabinet in the conference room.
10. The contents of the statement are true to the best of my knowledge and belief.
Signed
HENRY J. MOORE
Date
Chapter 10  Employment law
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Part 2  Civil litigation
112
Chapter 10  Employment law
113
Exercise 5 – language practice (i)
The following phrasal verbs are commonly used in legal English:
sue for damages call for the witness take down a statement draw up a court
order
Complete the following sentences by inserting the appropriate phrasal verb from those above
into each of the blank spaces below.
1. We expect the Judge to shortly.
2. My lawyer has told me he is now going to for approval by the court.
3. I have arranged for my secretary to from the independent witness.
4. If you do not compensate my client for your negligence he will .
Complete the following statements by selecting the correct expression to place in the blank
spaces from the list of single-word adverbs and multi-word adverbial expressions in the panel
below.
1. I you accept the present offer.
2. Our offer is an one.
3. I do that the contents of my statement are true.
4. The Defendant the claim against her.
5. The negotiation was .
6. You will need to your present offer if settlement is to be
achieved.
7. The Claimant was in the course of his work.
8. A Judge must be in the course of arriving at his decision.
9. An advocate must never the court.
10. The court ordered the Defendant to working for a competitor.
11. The employee was .
12. My client is hoping to .
Exercise 6 – language practice (ii)

Part 2  Civil litigation
Negotiation
The majority of cases (including Employment Tribunal cases) are settled prior to a
full hearing. This means that the parties in the case have negotiated terms of settlement,
thereby preventing the need for a court or tribunal hearing. This is sometimes
referred to as ‘settling out of court’. Negotiation can be conducted by correspondence,
telephone or by electronic communication such as e-mail as well as by means
of a personal meeting between the parties and their lawyers. In order to negotiate
effectively it is important to ascertain:
 The details of your client’s case
 The relevant law
 Your client’s aims and goals
 The strengths, weaknesses and value of your client’s case
Following further advice from Stringwood & Evans, Charles Scoville has now confirmed that he
would accept the sum of £25,000 in settlement of his claim. The following letter is addressed
to Roderick Krugman, the lawyer acting for Bannerman and Law and sets out without prejudice
proposals for settlement in accordance with Charles Scoville’s instructions. (‘Without prejudice’
means that the correspondence will remain confidential between the parties in the event
that no settlement is reached.) Complete this letter by inserting the correct words from the
box below into the corresponding spaces in the letter.
Exercise 7 – letter writing
extremely generous severely injured deliberately mislead
solemnly declare strongly suggest successfully defended
dismissed without notice totally objective settle out of court
substantially increase refrain from extremely fruitful
114
prospects of success damages award
Employment Tribunal unfairly dismissed mitigate
settlement applicant instructions
misconduct disciplinary hearing dismissal
Chapter 10  Employment law
STRINGWOOD & EVANS
18 BOND STREET
LONDON
W1 1KR
+44 020 7538 2892
30 May 2007
Weir & Co.,
45 Richmond Hill,
Richmond,
Surrey,
KT8 9BU. WITHOUT PREJUDICE
Dear Mr Krugman,
Charles E. Scoville v Bannerman and Law
We act on behalf of the [1] in the above [2] proceedings.
It appears clear from our [3] that our client has been [4] .
In particular, there does not appear to have been any valid nor acceptable reason for his
[5] . The dismissal was also procedurally unfair. For instance Mr Scoville was
not provided with the opportunity to explain, there having been no [6]
. Similarly, he was denied his legal right to have a representative present
when confronted with the allegation of [7] . We are confident therefore that
our client’s [8] are high.
Mr Scoville has not obtained further employment despite having made efforts to
[9] his loss. We are confident therefore that the Employment Tribunal would
[10] significant [11] .
Entirely without prejudice however, we would propose [12] of this matter on
the basis that your client pays the sum of £25,000 within 21 days.
Yours sincerely,
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Part 2  Civil litigation
There are different styles of negotiation. For instance you may take a co-operative, conciliatory
or competitive approach when negotiating. Adopting the latter approach involves making more
use of ‘aggressive’ vocabulary, whereas adopting a co-operative or conciliatory approach involves
more use of ‘diplomatic’ vocabulary. Note for instance the following expressions:
(a) Your offer is ridiculous.
(b) I wonder if you could reconsider your offer.
(a) is an example of aggressive vocabulary, whereas (b) is an example of diplomatic
vocabulary.
Now indicate which phrase in each of the following pairs is the diplomatic form of expression
and which one is the aggressive form (writing the initial ‘D’ alongside the diplomatic form and
‘A’ alongside the aggressive form).
(c) If settlement is not reached very soon we will proceed to a tribunal hearing.
(d) We would prefer to reach an early settlement in order to avoid a tribunal hearing.
(e) We demand that our client is provided with a reference.
(f) We are instructed to request a reference.
Exercise 8 – vocabulary
116
Employment Tribunals have jurisdiction over most employment law related cases
including unfair dismissal and discrimination in employment cases (including sex,
race and disability discrimination). Employment Tribunals usually consist of three
‘panel members’, consisting of a chairperson (who must be legally qualified as a solicitor
or a barrister) and two ‘lay’ members who are not lawyers. The Tribunal’s
decision is reached by a unanimous or majority decision. In other words if there is
disagreement between the panel members then the majority decision prevails.
The procedure for hearing tribunal cases is similar to usual court procedure (as
described in the previous chapter). Employment Tribunal proceedings are however
more informal. For instance an Applicant or Respondent is entitled to act for themselves
or appoint someone to represent them who is not legally qualified. Thus
anyone has ‘rights of audience’ in an Employment Tribunal.
Bannerman and Law have rejected the settlement offer put forward by Stringwood & Evans on
behalf of Charles Scoville. It is now necessary therefore to prepare for the Employment Tribunal
hearing.
Exercise 9 – preparing for the Employment Tribunal
The Employment Tribunal
Chapter 10  Employment law
117
1. Read carefully the following witness statements from Detective Constable Jack Clouseau
and Mandy Pauline Renwick.
2. Then complete the following case-plan on behalf of Charles Scoville in readiness for the
hearing, taking account of all the information now provided to you on the case.
IN THE EMPLOYMENT TRIBUNAL CASE NO. 128942/02
BETWEEN
CHARLES E. SCOVILLE Applicant
and
BANNERMAN AND LAW (a firm) Respondent
I, Detective Constable Jack Clouseau, care of Bow Street Police Station, Ludgate Hill,
London, hereby states as follows
1. On the morning of Monday 26 April 2007 I was on duty at Bow Street Police Station.
Acting on information received I attended the office of Bannerman and Law, solicitors,
at 11 The Strand, London at 9.45 a.m. that morning along with P.C. Capriati.
2. As we arrived a middle-aged man came to the main entrance to meet us, identifying
himself as Mr Henry Moore, Managing Partner of Bannerman and Law. He appeared
quite agitated, intimating ‘I’ve got him, the multi-million pound, Ferrari
driving swindler!’
3. Mr Moore was insisting vehemently that we should arrest another individual also in the
reception area who he kept pointing to. Mr Moore was remonstrating that this other individual,
who he referred to as Charles Scoville, had stolen £2 million from Bannerman
and Law. Mr Moore clearly wanted us to arrest this man and take him into custody.
4. P.C. Capriati tried to calm Mr Moore down while I spoke to the other man, who confirmed
he was indeed Charles Scoville. Mr Scoville also told me that he was employed
as a cashier with Bannerman and Law, had done nothing wrong and had no
idea what Henry Moore was going on about.
5. P.C. Capriati and I then invited Mr Scoville to come with us into a small empty office
adjoining the reception area. We explained to Mr Scoville that he was not under arrest
and that we merely wanted to have an informal chat with him. This was with a view
to establishing the full situation. Charles Scoville replied ‘Please, call me Charles. I am
more than happy to co-operate. I am an entirely innocent party in all this!’
6. My colleague and I therefore went into the small office with Charles Scoville and explained
to him that Mr Moore was alleging he’d misappropriated £2 million from
Bannerman and Law. Charles Scoville replied ‘That’s ridiculous, why on earth
should he think that? Oh good grief wait a minute! It’s the Ferrari isn’t it?’ He then
went on to explain that on the Wednesday of the previous week he’d been one of
three lucky jackpot winners of the national lottery and had won just over £4.8 million.
He hadn’t told anyone apart from immediate family. I asked Charles Scoville
for his full name, address and date of birth, which he provided. I then arranged for
him to attend Bow Street Police Station two days later. By then I hoped to have had
the opportunity of investigating matters further.
7. At 9 a.m. on Wednesday 28 April 2007 I attended the registered office of Chameleon
Gaming Systems at 148 The Mall, London, operators of the National Lottery. There I

Part 2  Civil ,litigation
118
spoke to Mrs Mandy Renwick, Chief Executive of Chameleon. She confirmed to me
that Charles Scoville had indeed been a lottery winner the previous week, winning
£4.8 million.
8. Further investigation then revealed that the missing £2 million was in fact paid back
into the client account of Bannerman and Law on Tuesday 27 April 2007. Also, that it
had actually been withdrawn by another partner at the firm, who had been trading
the money speculatively on the international money market at weekends. On previous
occasions these monies had been paid back into the firm’s client account prior to
the start of the working week. However a delay in the transfer of the funds on the
night of Sunday 25 April due to a delay in the opening of the Tokyo stock exchange
had triggered this whole situation. When Charles Scoville attended Bow Street
Police Station at 4.00 p.m. on Wednesday 28 April I therefore informed him accordingly
that no further police action was being taken in this matter.
9. The contents of this statement are true to the best of my knowledge and belief.
Signed
D.C. Clouseau
Date
IN THE EMPLOYMENT TRIBUNAL CASE NO. 128942/02
BETWEEN
CHARLES E. SCOVILLE Applicant
And
BANNERMAN AND LAW (a firm) Respondent
I, Mandy Pauline Renwick, care of 148 The Mall, London, hereby state as follows.
1 I am Chief Executive of Chameleon Gaming Systems P.L.C., hereinafter referred to as
‘Chameleon’. Chameleon possesses the Governmental licence to operate the National
Lottery throughout the United Kingdom.
2 As requested by Mr Charles Edward Scoville I can confirm that he was one of three
‘Jackpot’ winners of the National Lottery draw on Wednesday 21 April 2007.
Mr Scoville’s winnings amounted to £4.8 million, paid to an account in his name
at Global Security Bank, 44 Piccadilly, London by telegraphic transfer on Friday
23 April 2007.
3 The contents of this statement are true to the best of my knowledge and belief.
Signed
M.P. RENWICK
Date
Chapter 10  Employment law
119
CASE-PLAN
A. THE CLIENT’S AIMS / GOALS.
Set out below the client’s main aims / goals.
B. ARGUMENTS IN FAVOUR OF YOUR CLIENT’S CASE AND SUPPORTING
EVIDENCE.
Indicate below two arguments in favour of your client’s case. Also identify any
specific sources of evidence in support of these arguments.
C. ARGUMENTS YOU ANTICIPATE WILL BE MADE BY THE OTHER PARTY.
Provide two examples of arguments you anticipate will be made by the Respondent’s
representative. Also indicate briefly how you will counteract these in the
course of negotiation.
If you are working on your own then undertake the ‘Individual Exercise’ below. Alternatively, if
you are working in a group then undertake the ‘Group Exercise’ below. Both exercises relate
to the above case of Charles E. Scoville v Bannerman and Law.
INDIVIDUAL EXERCISE
Imagine that you are the chairperson of the Employment Tribunal hearing Charles Scoville’s
case and carry out the following tasks.
1. Consider carefully all the evidence and details of the case, taking notes of information you
consider to be relevant to the case as you read through:
 Charles Scoville’s Application;
 the Notice of Appearance;
 the witness statements.
Exercise 10 – Employment Tribunal hearing

Part 2  Civil litigation
120
2. Write a Tribunal decision of approximately one page in length, referring to the evidence and
details available.
GROUP EXERCISE
Task 1
Allocate the following roles between yourselves:
 the Applicant (Charles Scoville)
 the Applicant’s Representative
 the Respondent’s Managing Partner (Henry Moore)
 the Respondent’s Representative
Task 2
Role-play the Employment Tribunal hearing of the Charles E. Scoville v Bannerman and Law
case by following the under-noted procedure:
(a) Person playing role of Respondent’s Representative conducts examination in chief of the
Respondent’s Managing Partner (Henry Moore). Endeavour to set out the Respondent’s
case. Person playing role of Henry Moore answers the Representative’s questions, improvising
with further sensible details as appropriate in addition to using the details provided
in the Applicant’s Application, the Notice of Appearance and the witness statements.
(b) Person playing the role of Charles Scoville’s Representative cross-examines Henry Moore,
with a view to contradicting his evidence and putting the Applicant’s case.
(c) Person playing the role of Charles Scoville’s Representative then calls Charles Scoville (the
Applicant) to give his evidence, taking the Applicant through his examination in chief. Person
playing the role of the Applicant answers the Representative’s questions based on the
details provided in the Applicant’s Application, the Notice of Appearance and the witness
statements as well as by using further improvised facts and information as appropriate.
(d) Person playing the role of the Respondent’s Representative then cross-examines the Applicant,
seeking to repudiate the Applicant’s evidence and to put the Respondent’s case to
the witness.
(e) The Applicant’s Representative makes a short closing speech, summing up the arguments
and evidence in support of the Applicant’s case and seeking to dispute the Respondent’s
arguments and version of events.
(f) The Respondent’s Representative makes a short closing speech, summing up the arguments
and evidence in support of the Respondent’s case and seeking to contradict the Applicant’s
case.
If there are more people within your group then you should add further roles to the role-play.
For instance a further person could play the role of Mandy Renwick. (The Applicant’s Representative
could call this further witness for examination in chief, the Representative for the
Respondent then conducting cross-examination. A further person could play the role of Detective
Constable Clouseau in a similar fashion.)
If there are remaining members of your group then appoint three of them as panel members
of the Tribunal. These three should then consider and announce a decision after hearing all
the evidence. Everyone present should watch and listen carefully throughout the hearing, taking
notes of the evidence.
Chapter 10  Employment law
121

Try to arrange your group as follows for the role-play.
EMPLOYMENT TRIBUNAL PANEL
WITNESS (Applicant / Henry Moore / D.C. Clouseau / Mandy Renwick)
RESPONDENT’S REPRESENTATIVE APPLICANT’S REPRESENTATIVE
Charles Scoville’s case has now been heard and the Employment Tribunal has issued a written
decision (pp. 117–19).
1. Read out loud the following words from the judgment, taking care to use correct stress
patterns.
2. Write the correct stress pattern above each word in the panel. By way of example, the first
one is done for you, showing the correct stress pattern above the word ‘decision’. (The
phonetic /s/ being found in ‘si’ in this word.)
Exercise 11 – reading and pronunciation
decision (de-ci-sion) dismissal conduct considered
procedure fairness information hearing
representative misconduct investigation evidence
allegation admission employer wrongdoing
misappropriation tribunal declare Respondent
...
3. Read out the decision, paying attention to your pronunciation.
(If you are working with others then work in pairs, taking turns to read out the decision to
each other. Provide feedback to your partner on his or her pronunciation, identifying any
specific words which you consider are being incorrectly pronounced.)
122
Part 2  Civil litigation
THE EMPLOYMENT TRIBUNAL
CASE NO. 128942/02
BETWEEN
Applicant Respondent
Charles E. Scoville AND Bannerman and Law (a firm)
DECISION OF THE EMPLOYMENT TRIBUNAL
HELD AT: London (Central) ON: 27 AUGUST 2007
CHAIRMAN: Mr Claude Rumbelow MEMBERS: Thomas Stringfellow
Carol Kendall
Appearances
For Applicant: Richard Vaughan, Counsel and
Nancy Watkins, Solicitor
For Respondent: Jonathan Stevenson, Counsel and
Samantha Ponsonby, Solicitor
DECISION
The unanimous decision of the Tribunal is that: the Applicant was unfairly dismissed.
THE DECISION OF THE EMPLOYMENT TRIBUNAL
The tribunal has reached a unanimous decision in this matter. Firstly it is accepted that
there was a dismissal. What was however in dispute was whether the dismissal was
fair or unfair. The Respondent contended the former and the Applicant the latter.
Chapter 10  Employment law
123
The Respondent is a city firm of solicitors, being a partnership with its head office in
London. It also has four overseas offices. The Applicant was employed as a legal
cashier for approximately 4 years prior to being dismissed by the Respondent on
26 April 2007. The Respondent contends the dismissal was justified by reason of gross
misconduct.
We are satisfied that the reason for dismissal was the employee’s conduct relating to the
alleged theft of £2 million. This is a potentially fair reason for dismissal as provided by
section 98 of the Employment Rights Act 1996 (ERA). We then considered whether the
dismissal was fair in all the circumstances, as further required by section 98(4) ERA.
A relevant issue here was whether the employer had adopted a fair procedure in the
course of dismissal. The Advisory, Conciliation and Arbitration Service (ACAS) Code
of Practice on Disciplinary Procedure provides a helpful set of guidelines. It states that
the following matters should be taken into account by an employer in the course of taking
disciplinary action against an employee in order to ensure procedural fairness. The
employee should be provided with detailed information concerning the allegations in
advance of the disciplinary hearing (preferably in writing). The employee should also
have the opportunity to make representations in his or her own defence. The employee
is also entitled to be accompanied by a representative at a properly convened disciplinary
hearing.
We also took into account the instrumental finding in British Home Stores v Burchell
1980, as recently confirmed by Boys and Girls Society v MacDonald. This was in relation
to considering the reasonableness of the employer’s actions in dismissing the employee
in the particular circumstances.
These cases held that in order for the dismissal to be fair in a case of alleged misconduct
the employer must satisfy three criteria. Firstly that the employer genuinely believed
the employee had done wrong. Secondly that there were reasonable grounds for
that belief. Thirdly that the employer reached that conclusion of misconduct after having
carried out a reasonable investigation into the matter.
In the tribunal’s view it was clear from the evidence we heard that this dismissal was
procedurally unfair. Virtually none of the above requirements for a fair dismissal were
adhered to by the employer. The Applicant was ‘ambushed’ by Mr Moore, the Respondent’s
Managing Partner. In other words the Applicant was dismissed without being
provided with any advance notice of the allegation being made against him. Nor was
he provided with the opportunity to reply to the allegation. Similarly, details of the allegation
were not even made clear to the Applicant at the time of dismissal. Neither
was there any proper disciplinary hearing. Quite simply Mr Moore had already made
up his mind that the Applicant had stolen this money without even listening to what
he had to say in response.
By Mr Moore’s own admission he summarily dismissed the Applicant in front of
colleagues. He also divulged details of Mr Scoville’s dismissal to a number of clients in
reception. It further appears from the evidence that there was no reasonable or proper
investigation carried out. Mr Moore simply leapt to the conclusion that the Applicant
was the culprit. This procedural unfairness was then compounded by denying the
Applicant an appeal hearing.


Part 2  Civil litigation
124
In further deliberating on the fairness of the dismissal in all the circumstances we took
account of the decision in Iceland Frozen Foods v Jones 1983 ICR 17. This case continues
to be recognised in law as providing the traditionally recognised test referred to as the
‘band of reasonable responses’. In other words did dismissal in the circumstances fall
within the band of reasonable responses which a reasonable employer might invoke?
This is an objective test as opposed to subjective. Therefore we would be erring in law
if we decided this case on the basis of whether we as individuals on this panel would
or would not have dismissed Mr Scoville in the circumstances. It is rather a question of
what a reasonably minded person would think.
Taking account however of the evidence, this tribunal is unanimous in deciding that
dismissal in the circumstances of this case was not a reasonable response to be expected
of a reasonable employer. We were particularly swayed here by the evidence of Mrs
Mandy Renwick, Chief Executive of Chameleon Gaming Systems, who we regarded
as a credible and helpful witness. Mrs Renwick’s evidence appears to clearly confirm
the Applicant’s version of events. We were also assisted by D.C. Clouseau’s evidence
which has satisfied us that there was in fact no wrongdoing on the part of Mr Scoville.
Indeed D.C. Clouseau’s evidence further indicates that the actual perpetrator was
one of the Respondent’s own partners.
This tribunal therefore finds that the Applicant was dismissed unfairly. I thereby declare
that this was an unfair dismissal. The Applicant was on a gross salary of £25,000
per annum, i.e. £1,500 per month net. His immediate loss of earnings from date of dismissal
until the date of this hearing therefore amount to £6,000. The Applicant remains
unemployed despite having made efforts to find similar work. The tribunal hereby
awards future loss of earnings for a period of a further eight months. The Respondent
is therefore ordered to make a total payment accordingly to the Applicant in the sum of
£18,000 within 14 days.
Claude Rumbelow
CHAIRMAN
REPORTED SPEECH
The following is an example of reported speech:
‘Henry Moore told Charles Scoville that he was being dismissed for stealing.’
In reported speech (also known as indirect speech) we describe what was said, using different
words from those actually spoken.
Exercise 12 – grammar practice
Chapter 10  Employment law
125
TASK 1
Re-phrase the following sentences to change them from direct speech into reported speech.
1. ‘I’ve got him, the Ferrari driving swindler!’
2. ‘You’re dismissed as of now Scoville!’
3. ‘I read an article in the local newspaper about your firm winning a case.’
4. ‘I was dismissed from my job recently.’
5. ‘I will try to negotiate a settlement for you.’
DIRECT SPEECH
The following is an example of direct speech:
‘You are being dismissed for stealing.’
TASK 2
Write a sentence in direct speech by indicating what the speaker might actually have said in
each of the following situations.
1. D.C. Clouseau asked Charles Scoville how he accounted for the Ferrari in the car-park.
2. Charles Scoville said that Henry Moore told him he was being dismissed and that he was
to return his office keys immediately.
3. Charles Scoville’s lawyer told him that he had a meritorious claim for unfair dismissal.
4. The Tribunal chairman said that Bannerman and Law had treated Mr Scoville reprehensibly
and that he had no hesitation in declaring that Mr Scoville had been dismissed
unfairly.
5. Charles Scoville said that he was pleased with the Tribunal’s award of £18,000.
Unfair dismissal
 Employees have the right not to be unfairly dismissed, per s. 94 Employment Rights
Act 1996 (ERA)
 One year qualifying length of service required in order to be eligible to claim unfair
dismissal
 Three months limitation period for issuing claim for unfair dismissal
 To defend an unfair dismissal claim an employer has to establish that reason for
dismissal falls within one of the acceptable reasons for dismissal as provided by
statute (s. 98 ERA), in particular:
Law notes

1. capability (e.g. ability, skills or professional qualifications)
2. conduct
3. redundancy
4. contravention of an enactment (e.g. employee is banned from driving and employed
as a delivery driver, rendering continuance of the work by that employee illegal)
5. some other substantial reason (e.g. necessary business re-organisation)
 Employment Tribunal will then consider whether dismissal was fair or unfair in all the
circumstances per s. 98(4) ERA, including for instance: whether employee was provided
with opportunity of providing his or her version of events; a fair disciplinary hearing
was held; employee was permitted to have a representative present; employee was
provided with a right of appeal etc.
Employment Tribunal
 Employment Tribunal (ET) is venue for unfair dismissal claims as well as for claims relating
to sex, race and disability discrimination in employment. ET also has jurisdiction
over claims relating to employees receiving less favourable treatment in the course of
employment on the grounds of sexual orientation or religion / beliefs.
 Appeals against ET decision must be on a point of law and submitted to the Employment
Appeal Tribunal (EAT) within 42 days of ET providing its written decision.
 Remedies ET can award for unfair dismissal include: compensation for lost earnings
and loss of other benefits (e.g. health insurance, pension and use of company car etc.)
and re-instatement.
 ET can award unlimited damages in discrimination cases.
Part 2  Civil litigation
126
Reported and direct speech
Reported speech
Verbs commonly used in reported speech include ‘said’, ‘told’ and ‘explained’. Reported
speech is often found in written court and tribunal decisions as well as in witness statements
and press reports. (Note for instance the use of reported speech in the ET decision
and witness statements you have considered in this chapter.)
There are various changes made in the course of reporting an event or comment by using
reported speech. For instance:
 Pronouns usually convert from ‘I’ to ‘he’/‘she’ and ‘my’ converts to ‘his’/‘her’
 ‘Tomorrow’ becomes ‘the following day’/‘yesterday’ becomes ‘the previous day’.
 Tenses change so that:
1. the present becomes the past
2. the present perfect becomes the past perfect
3. the past simple becomes the past perfect
Grammar notes
Chapter 10  Employment law
127
 Modal verbs change so that you often find for instance that: ‘can’ becomes ‘could’;
‘will’ becomes ‘would’; ‘may’ becomes ‘might’.
 There are seven main verb structures with reported speech:
1. verb  ‘that’ (‘He said that he was leaving’)
2. verb  object  that (‘He told us that he was leaving’)
3. verb  ‘that’  ‘should’  bare infinitive (‘She told us that we should leave’)
4. verb  infinitive (‘He said he tried to arrive on time’)
5. verb  objective + infinitive (‘He told me to go’)
6. verb  ‘ing’ (‘He said he liked working’)
7. verb  gerund (‘He reported seeing the driver stop
suddenly’)
Direct speech
When writing in direct speech we repeat what was actually stated, placing those words in
quotation marks (‘ ’). The legal term ‘verbatim’ means that the written document being
referred to recites the actual words of the speaker. It is important for a lawyer to
know whether the words he is reading are ‘verbatim’ since the precise words spoken by a
party are often of crucial importance in determining the outcome of a case. (E.g. in a
breach of contract case, what exactly did the seller of a motor vehicle say about the condition
of the vehicle?)