Attending An Employment Tribunal


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A guide to attending an employment tribunal hearing

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Attending An Employment Tribunal

  1. 1. ATTENDING AN EMPLOYMENT TRIBUNALThis guidance note is intended as a useful overview of the main points to consider if youhave to attend an employment tribunal hearing. It does not constitute legal advice, andwe recommend that appropriate advice tailored to your specific circumstances is alwayssought at an early stage.Attending a tribunal hearing can be a daunting prospect, particularly if you have neverdone so before. We’ve tried to demystify what happens at a hearing, and have collatedsome practical tips to help smooth your attendance. Feel free to pass this resource on toanyone in your organisation, such as managers or HR representatives, who may beattending a hearing either to observe or give evidence.Do you have any comments or questions on this subject? If so, we’d love to hearfrom you. Email us at at the tribunal • Know how to get there. • Be on time - aim to arrive about an hour early. • Bring a copy of your witness statement. • Book in with reception. • Find the correct waiting room (Respondent if you are there on behalf of your employer). • Meet your legal team. • The walls have ears. Be careful not to discuss your case outside of the Respondent’s room or loudly within the Respondent’s room.The hearing room • They vary in size but are laid out in a conventional way. • The tribunal composition is typically two lay members and a judge, although this depends on the type of claim. • Tribunal members face the rest of the room usually on a slightly raised platform.
  2. 2. • Two desks will face the members with room for the parties and their representatives. • The Respondent will sit on the left hand side of the room. • There are chairs at the back. The hearing will normally be public and so you may have the press or law students or training union representatives present during the hearing. • If you are giving evidence, you will sit at the witness table which is usually between where the Respondent and Claimant sit.Formalities • What to wear – there is no dress code. If you are a witness aim for smart and reasonably subdued – probably what you would wear for a job interview. • Forms of address – the judge is ‘madam’ or ‘sir’, as well as the lay members – not ‘your majesty’, ‘your honour’ or ‘my lord’ (we’ve heard all of these!). • Everyone remains seated apart from the witnesses who stand whilst they are being sworn in to give their evidence.The shape of the hearing • Tribunals have a wide discretion over how to run the hearing but there is a conventional order which is followed. • The judge will normally introduce herself and her lay members and then state what the issues are. • There may be some housekeeping or applications, then the hearing will probably progress as: o Claimant calls first witness. o Respondent cross examines. o Claimant re-examines. o Claimants calls second witness.
  3. 3. o Respondent cross examines. o Claimant re-examines. o And so on until all of the Claimant’s witnesses have given evidence. o Respondent calls first witness. o Claimant cross examines. o Respondent re-examines. o And so on until all of the Respondent’s witnesses have given evidence. o Respondent makes closing submissions. o Claimant makes closing submissions.Reading time • In most cases the tribunal will read the claim form and the defence form on the morning of the hearing. • If it is a complicated case or there are lots of documents to consider then the tribunal may ask for some reading time.Evidence • Evidence in chief: this is the evidence a witness gives in her own statement or under questioning by her own side’s representative. • Cross examination: this is the questioning of a witness by the other party’s representative. • Re-examination: this happens after a witness has been cross examined and their representative is allowed to ask further questions. • Leading questions are questions which indicted the expected answer, e.g.”Mr Smith then hit you on the head with a blue ring binder didn’t he?” • “What happened next” is not a leading question. • Leading questions are strongly discouraged in evidence in chief and re- examination (when your own side’s representative is asking you
  4. 4. questions) as the impact of a witness agreeing with statements formulated by their own lawyer is less than the impact of an account given in her own words. • In cross examination leading questions are essential (e.g. ”you swore at the Claimant before pushing him out of your office didn’t you?”)Being called as a witness • This means being asked to the witness table to present your evidence. • Your representative should introduce you and get you started. • You will have a clean copy of your witness statement and the hearing bundle of documents on the witness table in front of you. • Do not take any of your own papers or documents to the table. • You will take the oath or affirm – the oath will be taken on a holy book, an affirmation is a solemn civil promise not linked to a religious belief. • You will probably be expected to read your statement aloud. • If you refer to documents in your statement then the tribunal will probably want to pause and read the document you are referring to. Be guided by your representative on this. • When speaking, direct your answers to the Tribunal. It is natural to want to turn to the person asking you the questions but the Tribunal need to hear your answers.Cross examination • Once you have read your statement the other side’s representative will ask you questions. • This may be leading questions. • The purpose of cross examination is not to batter you into submission but to convince the tribunal. • The questions should be firm but polite with no drama.
  5. 5. • All parties should have to opportunity to cross examine each others witnesses.Re-examination • Once you have been cross examined then you might be asked further questions by your side’s representative. • However, re-examination can often do more harm than good so don’t be surprised if you are not asked any additional questions. • It is an opportunity to repair any damage.Tribunal questions • The tribunal may have their own questions to ask you. • No set point when they do this. Might be as the evidence progresses or at the end of the parties questioning.Submissions • After the witnesses have given their evidence each side has an opportunity to make submissions to the tribunal. • This is a speech seeking to persuade the tribunal to find one way or the other.After submissions • The tribunal will adjourn to make a decision • A decision could be reached on the day or the parties could be told that they will receive the outcome in the post.What can go wrong • You are delayed – take a note of your lawyer’s number or the number of the tribunal so you have someone to call to let them know. • You are ill and cannot attend – again, let your representative know as soon as possible as they may need to apply for a postponement of the hearing.
  6. 6. • The tribunal is not prepared to go ahead – this is very common as tribunals are overbooked. Your case may be floating which means it has no allocated Judge and you wait for one to become free. This can take a long time so take something with you to read.Do: 1. Dress appropriately. 2. Make sure you are familiar with your witness statement, that of your colleagues and any documents referred to in your statement. 3. Practice reading your statement aloud. 4. Make sure the statement is in your own words and that you are comfortable with everything in your statement. 5. Speak slowly and clearly and address your answers to the tribunal members. 6. Be respectful and attentive to the tribunal members. 7. Take your time and do not answer questions without thinking about the question properly. 8. If you need more time to answer a question or if you would like the question repeated then ask. 9. Answer questions as accurately as you can. 10. Remain calm.Don’t: 1. Don’t be forced to answer a question you don’t know the answer to. It is better to say “I don’t know” then try and make something up or guess at a response. 2. Don’t make things up – it is better to be truthful and stick to the facts. 3. Don’t try and answer a question you do not understand. Ask for it to be rephrased. 4. Don’t start answering before the question has been put to you. Allow the representative to finish.
  7. 7. 5. Don’t memorise your story or statement. You do not want your answers to sound rehearsed and its possible that the questions will come to you in a different order to the facts anyway. 6. Do not lose your temper. 7. If the tribunal breaks for lunch or the hearing ends before you have finished giving your evidence then you must not discuss the case with anyone unless the tribunal specifically tell you that you are no longer still under oath. 8. Don’t argue with the Judge or the other side’s representative.Sound interesting?mpm legal is a different kind of employment law firm.Were smart: household names trust us with all their employment work.Were competitive: we dont have the overheads of a full service firm, so you get asuperb service at a competitive cost.And were approachable: to our clients, were a clever friend they can call upon foradvice whenever they need it.We’d love to hear from you. Email us at