How to prepare for a tribunal hearing: What happens at the hearing
Taking Your Employer to an Employment Tribunal
If you can’t resolve an argument with your employer about your rights at work, such as Parental Leave or Requesting Flexible Working, you can end up taking your employer to an Employment Tribunal. Cathy Rogan, one of Working Families’ Rights Advisers, writes about the experience (What she describes applies to England and Wales only).
Most people will never go to an Employment Tribunal, so it’s difficult to know what to expect when you do. Tribunals are described as being ‘informal’ – this is in comparison to other courts! It is still a more formal setting than most.
You should aim to get to the tribunal at least 30 minutes before your hearing starts. You will sign in at reception and let the clerk know you are there. There are separate waiting areas for claimants and respondents. A lot of cases settle in the waiting rooms! You will see each side’s representatives popping in and out to hand over papers or to negotiate an agreement.
If you have any accessibility needs (such as language, disability or if you are breastfeeding), let the tribunal staff know as soon as you receive notice of the hearing. They are usually very helpful. There isn’t a dress code, but a good rule is to wear what you would wear to a job interview. The lawyers and judges will be dressed normally; there are no wigs or gowns. People don’t stand to speak and there is very little ceremony about proceedings. You call the judge ‘Sir’ or ‘Madam’.
The first time you have to attend the tribunal will probably be at a Preliminary Hearing. You will be sent an agenda and you might be asked to agree some things (such as what facts both sides agree on, if any) beforehand. Mostly Preliminary Hearings are to decide things about how the case is run such as hearing dates and witnesses, but sometimes Preliminary Hearings are to decide an aspect of the case. For example, there may be an argument about if your claim was brought in time. If this happens you may be sworn in to give evidence, or be expected to bring documents with you. It is important to prepare and to get as much advice as you can. You will receive notice of the Preliminary hearing in the post. It should be made clear what is going to be discussed and decided at a Preliminary Hearing, so if you are unsure ask the tribunal in writing.
The full hearing is when your claim will be decided. Most claims are now heard by a single judge, however discrimination claims are still heard by a panel. The panel is made up of a judge and two ‘lay members’, one from a Trade Union background, the other with a background in commerce. You can usually tell which is which from the type of questions they ask! Hearings are usually held in public, although it is rare for anyone to actually turn up and watch. In cases where there is evidence of a very personal nature, such as sexual harassment or some disability cases, you can apply for the hearing to be private. Hearings can be anything from half a day to several weeks, depending on the complexity of the case. Most are three days or less.
The claimant sits on the judge’s left, the respondent on the judge’s right. If the parties are represented then the representatives usually sit in the middle so they can more easily talk to each other, or sit closest to the judge(s). There will be a witness table, with an unmarked copy of the documents and all of the witness statements. Whether you or the respondent give evidence first will depend on your claim and what you have to prove, so be prepared either way. The other witnesses can normally watch the proceedings before their turn. Very occasionally a judge may order them to wait outside.
When it is your turn to give evidence you will be called to the witness table. You will be asked to swear on a holy book or to affirm. You will have submitted a written witness statement. You are not normally expected to read this out loud. You will be given opportunity to comment on new matters from the other side’s witness statements (‘Supplemental questions’) and then the cross examination begins.
Cross examination is where the other side’s representative asks you questions. It is a very stressful experience. The lawyer is allowed to ask leading questions like ‘You did leave the storeroom unlocked, didn’t you?’ Try not to get flustered, and certainly don’t get angry – the lawyer is only doing her job. But don’t worry if you do get upset. Judges understand that it is stressful, and there is often a box of tissues on the witness table for this reason.
After cross examination the judges will ask their own questions. If you have a break while you are sworn in as a witness (even an overnight break or longer), you are forbidden from speaking to anyone about the case until your evidence is finished and you are released.
After the evidence, each side will give their ‘submissions’, that is their arguments about why their side should win. This will be a mixture of evidence that the tribunal has heard and legal argument. Then the judges will go and make their decision. Depending on how much time is left, they may send you out to the waiting area, they may send you home until the next day or they may ‘reserve judgement’ – decide at another time and let the parties know in writing. If they do not reserve judgement, they will give the judgement orally. If this happens and you have lost you will need to ask for a written copy in case you are able to appeal.
If the tribunal finds for the claimant then they will also have to deal with remedies – that is how much money the claimant wins. This might be on the day of the hearing, or they may arrange a hearing after the judgement. When the tribunal deal with remedies they will want evidence about what you have been earning, what steps you have taken to look for work and if you are asking for costs (it is unusual for costs to be awarded unless a party has behaved unreasonably) how much those costs are. Again, they may give their remedies judgement orally or later in writing.
Most people who go to tribunal find it stressful, but interesting. Whether you have a lawyer or are representing yourself, the important thing is to ask if you don’t understand things. Anyone can go and watch a tribunal hearing – if you are going to tribunal it’s a really good idea to go and watch one first to get used to the building and how the hearing works. But even if you aren’t involved in a tribunal hearing it can be quite interesting to go and see how the system works.