Out-Law Guide 5 min. read
06 Jan 2023, 1:08 pm
This is a brief overview of what you can expect if you are attending an employment tribunal hearing either remotely or in person, and what you can expect if you are giving evidence.
In complex cases, there will be a tribunal panel of three people, including a legally-qualified employment judge. The rest of the panel will consist of two non-legally qualified lay members, one from an employer-focussed background and one from an employee or trade union background. This panel is often called the 'industrial jury'. More straightforward cases may be heard by an employment judge sitting alone.
Currently, many hearings are being heard remotely. You will need:
The hearing will be held using the Tribunal Service’s secure Cloud Video Platform (CVP) which works in a similar way to Zoom or Skype. Login details will be provided by the tribunal. In advance of the hearing you should review the detailed guidance note explaining how to join a CVP hearing and test your connection to CVP.
When you get to the employment tribunal you will have to sign in. You should then make your way to the appropriate waiting room. There are separate waiting rooms for 'claimants' - the employee or former employee bringing the claim - and 'respondents' - the employer against whom the claim is brought.
The clerk to the tribunal will take both parties and their witnesses and representatives from the waiting room into the tribunal itself when the employment judge and any panel members are ready. It is customary for the employer to sit on the left-hand side facing the tribunal panel, with the employee sitting on the right-hand side. In Scotland, witnesses cannot sit in the tribunal and listen to what other witnesses are saying until they have given their evidence. In England and Wales, this is allowed.
When you enter the tribunal itself you will see that the room is laid out in a particular manner. In complex cases, there will be a tribunal panel of three people; more straightforward cases will be heard by an employment judge alone. The legally-qualified employment judge runs the hearing, and will sit in the middle of the panel.
All the tables and chairs in front of the panel are for the parties or their representatives. There is then an area at the back of the tribunal room for witnesses, members of the public and the press.
When the tribunal starts, the employment judge will introduce themselves. All the parties and their representatives sit down, even when addressing the tribunal. Evidence is also given with the witnesses sitting down. The tribunal is less formal than a court, and there will be no one wearing wigs or gowns.
If you are giving evidence you will be called to the witness table when it is your turn to give evidence or, if it is a remote hearing, you will be introduced by your solicitor or barrister or the solicitor or barrister for the side whose witness you are. You will then be sworn in or, if you are not religious, asked to affirm. The tribunal clerk will ask you for your preference on this point before the hearing begins. You will then sit down and will initially be asked to give your name for the record.
When you are giving evidence, a copy of any documents the parties are relying on will be in front of you on the table so that you can refer to them. If the hearing is remote you may have the unmarked bundle and witness statements in front of you, but you must not have any other notes or materials in front of you.
In hearings in England and Wales a witness statement is prepared in advance and will form the basis of your evidence. In some cases the tribunal will read your witness statement in private, possibly before the hearing starts, and the statement will be taken 'as read'. In either case your representative may refer you to a document or ask you additional questions. The employment judge may also ask you questions based on what they have read, or as you go through your statement. Whether the questions are put to you by your representative or the employment judge you should direct your answers to the employment judge. Your witness statement together with your answers to these questions form your 'evidence in chief'.
In hearings in Scotland it is uncommon for witnesses to to give their evidence by means of a witness statement. Instead, they will be asked questions by their representative and the tribunal panel to bring out evidence.
After you have given your evidence in chief you will be asked questions by the claimant or their representative. This is known as 'cross-examination'. It is the job of the claimant or their representative to put their case to you and they may ask leading questions in order to do so. Your representative will object to improper questions, but otherwise you cannot ask for assistance in answering a question or discuss it with others.
After you have been cross-examined, your representative may wish to re-examine you. They may ask you a few more questions to clarify some issues that might have come out of cross-examination, or which have been given the wrong 'spin' as a result of the cross-examination. The employment judge and the other two members of the panel may also ask you questions at any time, although these may be saved until the end depending on how the employment judge wants to run the hearing.
The prospect of giving evidence may seem daunting and it may seem as if you are under examination and being subjected to a memory test. This is not the case. The simple rule is to give a truthful answer rather than try to get the 'right' answer – it is quite proper to say that you do not know or cannot remember the answer to something if that is the truth. You can also ask the questioner to rephrase an unclear question, or to look at a document to refresh your memory before answering a question.
The employment judge should be addressed as 'sir' or 'madam'. They will be taking a manuscript note of the evidence and will sometimes read their note back to you and ask you whether you think it is correct.
If the tribunal adjourns for a break or lunch while you are giving evidence you are not allowed to speak to any of the other witnesses or to your representative. You are not allowed to talk to anybody about the case until you have finished giving evidence and are no longer under oath. The employment judge will most likely remind you of this if you are in this position.
Both parties or their representatives make closing submissions once all the evidence has been given. This gives them the opportunity to summarise their case to the Employment Tribunal. Generally this is done orally although the tribunal will sometimes ask for submissions in writing.
Once the hearing has finished the employment judge or tribunal panel will adjourn to consider its decision. It may give its judgement orally on the day of the hearing or, in more complex cases, the decision will be reserved and a written judgement sent out to the parties at a later date.