What to expect when attending an employment tribunal

One unexpected downside of being a manager, or indeed any level of employee, is the possibility that you might need to attend an employment tribunal (ET) hearing as a witness for the employer. You may understandably feel uncertain about what to expect.

Whether the hearing is taking place in person or virtually, having a clear idea of the process can help reduce anxiety and ensure you’re prepared to give evidence effectively. This guide sets out what you can expect and how to prepare.

Remote hearings

Following its introduction during Covid, some cases are heard remotely, via the tribunal’s Cloud Video Platform (CVP). CVP is similar to Zoom and you will therefore require a laptop or computer that has a camera, speaker and microphone.

Prior to the hearing, you should have been provided with a hard copy of the Bundle of documents which both parties intend to rely upon. You are not allowed to annotate this Bundle. You will also be provided with login details for joining the hearing, together with detailed guidance on how to use CVP. It is recommended you check that your connection is sufficient prior to the hearing to avoid technical complications.

In-person hearings

If attending an in-person hearing at the ET office, once you have signed in you will be taken to the appropriate waiting room. Parties are separated prior to the hearing, and you will be directed to separate rooms. Employees or other individuals bring a claim will be taken to the ‘Claimant’ waiting room, along with their witnesses, while employers and their witnesses will be taken to the ‘Respondents’ waiting room.

Once the judge or panel is ready, the clerk will take parties into the tribunal room itself. Employers and their representatives will sit in front of the panel on the left-hand side facing the tribunal panel and the employee and their representatives will sit on the right side. Any members of the public or press will sit at the back of the room.

In Scotland, witnesses are not allowed to sit in the tribunal until they have given their evidence, so will remain in the waiting room. In England, witnesses will generally be allowed to wait in the tribunal room while the hearing proceeds.

The Panel

In most cases, the case will be heard by a single legally qualified employment judge who will sit alone.

In some cases, particularly in discrimination cases, the case will be heard by a panel of three: one legally qualified employment judge and two non-legally qualified lay members. One lay member will have an employer background and the other will have an employee or trade union background. The employment judge will sit in the middle of the panel.

When the panel or judge enter the tribunal, parties are expected to stand until directed otherwise by the judge.

Giving evidence

At the beginning of the hearing, the judge will introduce themselves and will advise parties of housekeeping rules.

A tribunal process is intended to be less formal than a court and all parties, including representatives and witnesses, therefore remain sitting, even when addressing the panel. Neither representatives nor the judge will be wearing wigs or gowns.

In most dismissal cases, the Respondent’s witnesses will give evidence first; in other cases the Claimant may “go first”. Be aware that hearings can last for several days or even a few weeks; the representatives will look to agree a timetable of evidence so that the witnesses know when to attend.

When giving evidence, you will be called to the witness table which is usually between the panel and the representatives’ table. If it is a remote hearing, you will be introduced by the relevant representative. You will then be asked to take either the oath or affirmation (that you will tell the “whole truth” etc). This is taken standing up and you will then sit for the remainder of the examination.

As noted above, you will either have been given a hard copy of the Bundle of documents (if a remote hearing) or a hard copy of the Bundle will be placed on the witness table (if in person). You will be asked questions on certain documents within the bundle and will be taken to the relevant pages by the representative questioning you.

You will first be asked questions by your respective representative. In other words, if you are giving evidence for the employer, the employer’s representative will question you first and vice versa – this is known as giving evidence in chief.

The judge or panel may also ask you questions if they require further clarification on anything you have said.

In England, evidence in chief is generally given by means of a witness statement which will have been provided to the other party and the tribunal in advance – this avoids lengthy questioning by the relevant representative and allows the hearing to move straight to the next stage (cross examination). In Scotland the usual approach is that any witness statement is for that side’s use only, and is not provided to the ET or the other side; which means that examination in chief can be a time consuming process.

Cross examination

Once you have given your evidence in chief, you will then be asked questions by the other side’s representative – this is known as cross examination.

There may be times when the representative tries to ask you inappropriate questions. In these instances, your representative will object. The judge will then decide if the question will be allowed or not. Your representative cannot answer any questions on your behalf.

Re-examination

After cross examination, your representative may decide to ask you further questions based on what has come out during cross examination, perhaps to clarify any confusion. The panel may also ask you questions if they have any outstanding queries that they want clarified.

General top-tips

When answering questions, take your time! If you are unsure of the question, ask them to repeat or rephrase. It is helpful to keep your answers short and succinct to the question you are being asked, do not go off on tangents. Do not start speaking just to fill a silence!

If you do not know the answer, say so – do not try to guess! The purpose of giving evidence is to give a truthful answer, not the ‘right’ answer. Do not get into an argument with the other side’s representative – remain calm, professional, and thoughtful.

Address your answers towards the panel and keep an eye on the judge’s pen. The judge will be taking notes as they go along so you should give them a chance to capture what you are saying. It is helpful if you can speak slowly and clearly. If you wish to refer to a document in the Bundle, ask if you may do so.

If the tribunal adjourns for a break, or for lunch, and you are still under oath, you will not be allowed to speak to any of the other witnesses or your representatives until you have finished giving evidence and are no longer under oath.

Closing submissions

Once all witnesses have given evidence, both parties or their representatives will make closing submissions. Closing submissions are a summary of the case and their legal arguments, telling the ET why it should find in favour of a particular party. Generally, this is done orally but sometimes the judge may request them in writing at a later date, particularly if there is a shortage of time.

Decision

Once closing submissions have been made, the judge or panel will adjourn to consider matters and reach a conclusion. In more straightforward cases, a decision may be given orally on the same day, however in our experience this is rare. In reality, in most cases the decision will be reserved and a written judgement will be issued to parties at a later date.

The written judgement will set out the ET’s findings in fact, an analysis of the law, and the conclusion reached. A party who is unhappy with the ET’s decision can ask the ET to reconsider the judgement, or can appeal to the Employment Appeal Tribunal on a point of law. There are strict time limits for these processes.

Out expert team of employment lawyers have many years of experience of ET process. If you are looking for assistance, don’t hesitate to contact us.

This update contains general information only and does not constitute legal or other professional advice.

Natasha Wyllie, Senior Solicitor: nwy@bto.co.uk / 0131 222 2936

Amy Campbell, Trainee Solicitor: aca@bto.co.uk / 0141 673 3255

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