10 things you should know at an Employment Tribunal
- AuthorKirsty Hunt
1. What are Employment Tribunals?
Employment Tribunals are independent judicial bodies who resolve disputes between employers and employees over employment rights. They will hear claims such as unfair dismissal, breach of contract, discrimination, unlawful deductions from wages, and redundancy payments, amongst others.
2. Who actually hears my case?
In less complex cases such as unfair dismissal and wages claim, for example, the case will be heard by an Employment Judge sitting alone. An Employment Judge must have at least 5-7 years post qualification experience (the relevant legal qualifications for solicitors or barristers) and have gained legal experience during that time. However, there is no requirement for them to have been a solicitor or barrister previously, for example, Chartered Legal Executives can also become Employment Judges.
In more complex cases such as discrimination, the Judge will be accompanied by two wing members, one most likely from a trade union background (to give the perspective from an employee’s point of view) and one from an HR/business background (to give the perspective from the employer’s side). Whilst panel members are non-qualified, they must have relevant professional experience.
3. What is it like at an Employment Tribunal?
Whilst the Employment Tribunal is still a court of law and a formal process will be followed, it is not as formal as criminal proceedings, for example, the Crown Court. There are no wigs or gowns and it is much more like an extremely formal disciplinary hearing.
The rooms are small/medium sized and there are chairs at the back of the room (known as the public gallery) where the parties, any witnesses and their companions can sit. All Employment Tribunal hearings are public hearings unless otherwise ordered.
The Claimant and Respondent will usually sit up front at a separate desk with their own representative, facing the Employment Judge and/or panel members.
4. How long will it take to get to a hearing?
Employment Tribunal claims can take a long time. The average time between starting a claim and receiving a decision is 27 weeks. This will, however, depend upon a number of factors, such as the type of claim being heard, the number of witnesses being called to give evidence (as this will affect the length of the hearing), the location of the hearing and how busy that particular Tribunal is (as this can affect availability). In some cases, it could take more than a year from start to finish.
5. Can I represent myself and what will I need to do?
Any Claimant or Respondent can choose to represent themselves at the hearing but this decision should not be taken lightly. Often the parties will instruct a legal representative such a solicitor or barrister who is experienced in employment law. The reason for this is that each party will have the opportunity to question the other, based on the contents of any witness evidence exchanged prior to the hearing in the form of a witness statement. This is known as cross-examination. In order to ask the right questions and win the case, this often requires a certain amount of skill. Any leading questions are forbidden and once witness evidence has been heard, both parties will need to make legal submissions in support of their case. This includes making reference to support case law.
6. What happens at the Tribunal?
On arrival, you will need to sign in at reception and advise whether you are attending as the Claimant or Respondent or whether you are a witness for either party. You will then be sent to a waiting room and allocated a clerk who will liaise with you or your representative and collect any necessary bundles or papers prior to the commencement of the hearing.
You will usually need to arrive around 9/9.30 am but the hearing is unlikely to start until around 10 am. You will be advised when the Judge is ready to hear your case and informed where to go at that time.
The Claimant and Respondent are provided with separate waiting rooms. Other Claimants and Respondents may also be in the waiting rooms as there is often more than one case being heard on the same day. You can use the waiting rooms as a base throughout the course of the day. The Employment Judge and/or panel members will usually take a mid-morning and mid-afternoon break and provide everyone with around 1 hour for lunch (unless agreed otherwise or not considered appropriate). Additional breaks may be given for someone with a disability and the Employment Tribunal should be informed of any specific requirements prior to the hearing.
At the start of the hearing, the panel members will introduce themselves and the Judge will decide which side will give their evidence first (the Claimant or the Respondent). In an unfair dismissal claim, the employer usually goes first as the burden is on them to prove that the dismissal was fair. In a discrimination claim, the employee usually goes first as they have to establish a prima facie case of discrimination before the burden of proof shifts to the Respondent. Ultimately, however, this could change and will be at the discretion of the Judge.
Both parties will then have an opportunity to cross-examine the other side and their witnesses. Each witness will be called up to the witness table (where you can be seated) and will be sworn in. This will either be on the bible or otherwise, depending on whether you are religious. At the witness table, you should have in front of you a copy of the agreed Bundle and your witness statement. You can refer to this during the course of cross-examination for assistance.
Any questions will be based on the contents of the witness evidence already provided and leading questions will not be permitted. During the course of giving witness evidence, the Judge and panel members will also ask questions.
Once all of the evidence has been heard, both parties can then make submissions (the summing of their case and any relevant legal arguments). The Judge will then adjourn the hearing to make a decision. In the majority of cases, the Judgment will be reserved and a decision will be sent out in writing at a later date, following the hearing. Occasionally, a decision will be given on the same day.
7. How do I answer questions during cross-examination?
When being asked a question, you should listen to the actual question being asked and try to answer yes or no in the first instance. You can then expand on your answer further if this is necessary. Try to remember the question as often when nervous, witnesses will start talking about something else that is not relevant to the question and may say something that was not necessary or helpful to the case. This may also cause the Employment Judge to interrupt and ask you to re-answer the question.
Try to direct your answers at the Employment Judge and any panel members at all times, even if you are being asked a question by the other side’s representative.
If you are unclear about a question then you can ask for this to be repeated. If you need some time to think about your answer or reference a document in the Bundle, then do so. Just let the Employment Judge know what you are doing. This is perfectly fine!
Take your time and if you do not know the answer or you cannot remember, just say so. Often hearings will take place a long time after the event in question and memories do fade.
8. How much can the Employment Tribunal Award?
The amount awarded will be dependent on the type of claim that has been heard and other factors such as your earnings before you were dismissed and if you have since found a new job.
In cases of unfair dismissal, compensation will be made up of a basic award, which is a fixed sum calculated to a statutory formula (similar to that of a redundancy payment) and a compensatory award, the purpose of which is to compensate you for the actual money you have lost as a result of being unfairly dismissed.
The maximum amount that can be awarded as compensation for unfair dismissal is currently capped at £83,682, or 52 weeks gross salary (whichever is the lower) but you are expected to mitigate your loss as far as possible and any new earnings will effectively be deducted from any compensation awarded. This is in addition to the basic award which can be ordered by the Tribunal of up to a maximum of £15,240.
In cases of discrimination, there is no limit on compensation and the aim is to put the Claimant into the position they would have been in had the discrimination not happened. Compensation can be made up of financial loss (including earnings) and injury to feelings, the latter of which is dependent on the severity of the discrimination. In less serious cases such as one-off incidents, the Tribunal can award between £900 and £8,600. In the most serious cases, they can award in the region of £25,700 to £42,900 and for anything that falls somewhere in between they can award in the region of £8,600 to £25,700.
9. Will I have to pay the other party’s costs?
Unlike in civil cases, costs do not “follow the event” and a losing party will not automatically be ordered to pay the other’s party’s legal costs. This decision is solely at the discretion of the Employment Tribunal but a costs application will usually be successful if one party or their representative has acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing the proceedings or in the way they were conducted. Costs are also likely to be awarded if the claim had no reasonable prospects of success (particularly if the Claimant was warned about this by the other party earlier on in the process).
10. What can I do if I am not happy with the decision?
Either party can appeal to the Employment Appeal Tribunal if they believe a legal mistake was made. However, you cannot appeal just because you are unhappy with the decision, it must be because there was a problem with a point of law. For example, because the Employment Judge got the law wrong or did not apply the correct law and was unfairly biased towards the other party.
If you want to appeal, you must have the full written reasons for the Tribunal's Judgment. If the judgment was given in person, you can ask for full written reasons to be sent to you but you must do this within 14 days of receiving the Judgment.
Any appeal must be submitted within 42 days of the date the written reasons for the Judgment were sent out.
Finally, one more thing to note...
You can still settle your claim even once you get to the Employment Tribunal. In fact, many cases will settle at this late stage depending on how the evidence goes for either party. This may be done via a Consent Order, agreed by the Judge who confirms there is no longer a need for the hearing to continue or with ACAS assistance via a COT3 Agreement. ACAS are always available to assist with settlement negotiations, right the way through the process. However, if you are prepared to settle at an earlier stage, this is encouraged by the Employment Tribunals and will help avoid unnecessary time and cost for all parties involved, including the Employment Tribunal.