The single most common mistake made by inexperienced advocates and litigants in person in the Employment Tribunal is to assume that it is easy to demonstrate that an negative act by an employer was done on discriminatory grounds. For example, many think that evidence of having been bullied is sufficient even where there is no basis for suggesting that the bullying had anything to do with being a member of one of the protected groups. There is a similar problem in constructive dismissal cases where it is sometimes believed that a resignation as a result of stress is enough and that it does not matter which act of the employer, if any, actually caused the stress. However, (most) tribunals are very strict about not exceeding their jurisdiction and they will not allow what really amount to personal injury cases to succeed merely because they disapprove of a respondent or feel sorry for a claimant.

When, as often occurs, there is a discrimination claim concerning numerous incidents, the tribunal will want to isolate those for which there is a discriminatory motive from those for which there is not. This can sometimes be fatal to the case. For example, to make out harassment, an employee is required to show either a violation of his dignity or the creation of an adverse environment, and one or two minor incidents may well not have this effect. Even where such an environment is created, if it is largely the result of events for which there is no jurisdiction, it will not assist if off-colour comments contributed to it if they would be insufficient on their own. Similarly, tribunals will rarely find constructive dismissal in cases of overwork and a claim of this nature will not be strengthened by a few mildly aggressive acts by an employer. Regrettably, although this reasoning is entirely justified, tribunals are reluctant to spell it out explicitly for fear of an appeal. Instead, they have a tendency to make adverse findings of fact which can be distressing for claimants and means that they often fail to understand why they have lost.

There are some more experienced representatives who understand the above problems and realise that it is necessary to selectively plead those points that will most assist the case. This is very sensible but it will not prevent tribunals from considering whether there are some unpleaded issues which may have actually been the cause of the stress felt by the claimant. It is even possible that tribunals have become more sceptical to counter the development of more sophisticated litigation tactics and that this could be as detrimental to strong claims as to weak ones. Therefore, it is important to be able to lead evidence to show which particular acts were the most upsetting for the claimant. It goes without saying that it will help a great deal if there are documents to prove they were complained about at the time.