Employment tribunals: Your tribunal hearing

If your employment tribunal claim has reached the stage where a hearing date has been set, you need to ensure you have organised everything in time. An employment tribunal hearing is an event most employees will only experience once in their lives, so it also helps to know what to expect ahead of time. 

We explain how to make final preparations for your hearing, who will be present, how long it will last, witness cross-examinations and more. 

See also our guide on Employment tribunals: Your journey as a claimant, for a step-by-step guide, beginning with your decision to make a tribunal claim to the reality of participating in a tribunal hearing.

What final preparations need making for your tribunal hearing?

Not all preparations in the final few weeks leading up to a tribunal hearing will be exactly the same, but they will include most if not all of the following.

Preparing witness statements

Your most significant final written input in support of your case is your own witness statement. You may also have persuaded individuals who witnessed the events which gave rise to your tribunal claim to submit witness statements

Each witness has to write or approve their own statement. If you instruct a lawyer, they will normally draft the statements for you all, but you must read them carefully and ensure you entirely agree with the contents.

At the hearing, you’ll have to promise that your statement is true and you will be cross-examined on it. The statements must be ready to exchange with any witness statements from your employer’s side before the hearing – normally 2 to 4 weeks before, as directed by the tribunal judge.

Briefing your witnesses for the hearing

If you have individuals acting as witnesses for you, explain to them that, unless they have a very good reason, they’ll be expected to attend the hearing. Without attendance, their evidence has very little weight as the judge will want to question them.

(See Witness statements for how to write them and other practical tips.)

Getting ready for cross-examination

The exchange of witness statements gives both parties the opportunity to prepare relevant questions for cross-examining witnesses. It helps to have rehearsed your answers in advance for when you are being cross-examined. See below for more on cross-examination.

Pre-hearing conference

It can be valuable if either you or your representative (if you have one) can convene a meeting – in person or via video conference –  of everyone who will be on your side at the hearing, including any legal professionals who may represent you (ie barrister, solicitor) and your witnesses.

Such an event means that you can share any information you may have gathered since any previous communication and decide on your strategy for dealing with any ‘difficult’ or more tricky aspects of the case.

Preparing the  bundle of documents for the hearing 

Ideally, there should only be one ‘bundle’ of documents that all parties can refer to during the hearing. You can discuss with your representative which documents should be included from your side. 

If you are representing yourself, then the documents you select will be those which are most important in supporting your case. However, you are also expected to include any relevant documents in your possession that don’t necessarily support your case. 

Documents that are marked ‘without prejudice’ should not be included. ‘Legally privileged’ documents should also be excluded – that is, advice and discussions with your lawyer about your case.

Usually, it is the responsibility of the respondent or the respondent’s legal representative to prepare the bundle. However,  it’s always best to make a point of consulting the other side about who will do this.

Be prepared to update the bundle if any new documents come to light, right up to the deadline (set by the tribunal judge) for delivering copies of the bundle to the tribunal.

(See Gathering evidence and Your journey as a claimant)

Need help with your tribunal hearing?

What happens on Day One of your hearing?

What happens on the first day of your hearing will depend on whether it is to be held in person or online. Below are outlines of both alternatives:

Hearings in person

Try to arrive in plenty of time before your hearing is scheduled to start, so that the clerk who checks you in and shows you to your designated waiting area can do their job properly and so that you can remain cool, calm and collected. 

Make sure you go to the correct hearing centre. Some tribunals are pooled together for administration purposes, so one employment tribunal may write to you about your hearing that will be held at another tribunal centre.

Dress smartly, switch your mobile phone off and don’t bring any food or drink into the tribunal hearing room unless you have a specific health need.

Address the tribunal panel members as either ‘sir’ or ‘madam’ and feel free to ask questions about anything you do not understand.

Hearings online

Since the covid pandemic, most hearings have been online. You will be sent a link beforehand. The tribunal’s instructions will indicate which platform it works best on. It’s a good idea to open the link 5 to 10 minutes early to ensure it is working.

The system is quite simple to use and similar rules and guidance apply as for in-person hearings, modified if required. For example, as with in-person hearings, you must not liaise with your lawyer whilst giving evidence. You should, however, find a sensible way to converse during other parts of the hearing.

Last-minute settlements

It’s worth remembering that, even at this late stage, a settlement agreement between the two parties may be possible and discussions to this effect are likely to continue right up to the last minute. In fact, this is when many cases settle.

Be prepared for a settlement offer

So it would be a good idea to figure out in advance what amount of compensation you would be prepared to accept if the other side made a settlement offer and what other terms (eg a good reference) you would seek. 

In the discussion of any settlement, you might face pressure from your employer’s representatives to withdraw the case, but avoid doing so without first understanding the full implications. 

Always ask for an explanation of anything you do not understand.

Ensure the settlement is properly recorded

If you do agree to a last-minute settlement ensure the terms are fully recorded either in a ‘settlement agreement’ or Acas’s COT3 form.

This gives you more control should the employer break the agreement as you will have legal backing to enforce the terms. Your employer will also want that sort of agreement, as otherwise you won’t be prevented from bringing another claim.

(See Settlement agreements for more.)

Will there be a tribunal panel or just a judge?

In discrimination cases, the tribunal is normally made up of a panel three: an employment judge and two lay members.

In other cases, there is normally just a judge.

Tribunal reading time

The judge/tribunal panel usually arrives early on the day of your hearing and starts reading all the documents relating to your claim.

It is not unusual for the morning to be spent waiting for the tribunal to read the documents in even fairly simple cases and longer in cases that are more complex.

When the tribunal hearing opens

The judge will formally open the proceedings and introduce themselves and any panel members

They will then normally deal with “housekeeping” issues which involve such things as agreeing on what documents should be available, confirming exactly what the case is about and how long the hearing is likely to last.

What happens when the tribunal is ready to hear your case?

There is a formal process to be followed at an employment tribunal, with one party asked to present their case before the other and closing statements made before the hearing concludes.

Case presentation and cross-examination

The judge will decide who presents their side of the case first. This will depend on the nature of the case; employees often go first in discrimination cases and employers usually start proceedings in unfair dismissal cases. 

That’s because it’s for the employee to prove that they’ve been discriminated against but for the employer to prove that they dismissed the employee for a fair reason.

If you go first you will be asked questions (in other words, cross-examined) about your witness statement by your employer or their representative.

Questions may also be asked by the tribunal judge throughout the proceedings.

How to behave when you’re being cross-examined

  • Answer the questions as honestly as possible and if you are unsure about any of the questions ask for them to be repeated or re-phrased, so you can respond properly. 
  • While your representative may object to any questions they feel are improper, you must generally answer the questions put to you without assistance.
  • Try to remain calm as it can be a very pressurised situation as the questions will be framed to provoke answers that help prove that your case is wrong.
  • It is normal for the opposing side’s legal representation to try to intimidate you so as to influence how you answer questions. However, if you feel they are being too aggressive and you feel really uncomfortable with your treatment you can speak to the judge about it.
  • Once your employer has finished, your own representative (if you have one) may want to ask you some questions. This is more likely to happen in a complex case, or they may want to ensure further clarity is added to some of the answers you provided earlier. 
  • They may also want to give some of the information you previously provided a more positive ‘spin’ so that it benefits your case rather than your employer’s.

Cross-examining your employer 

The roles are reversed as it is then your employer’s turn to be cross-examined either by you or your legal representative. Your employer will also be able to call their own witnesses who in turn will be asked questions by you/your representative.

  • If you are representing yourself you can ask witnesses about any areas you feel are unclear or where evidence they have provided may appear to be contradictory.
  • Ask the witness to clearly confirm that the things they have said are true, whilst also raising with them evidence that suggests the situation may in reality be different from what they’ve said. Then ask for their thoughts on any discrepancies. This will give a clearer indication to the tribunal about the reliability of the witnesses as compared with the reliability of the evidence.
  • As is the case when you are being cross-examined by your employer, it is important to remain calm and objective and to focus on the facts of the case. Displaying any sort of negative or hostile attitude towards your employer or their representative will not be seen in a positive light by the tribunal panel.

(See also Employment tribunals: Your journey as a claimant)

Conclusion of the employment tribunal hearing

When the hearing is finished, both parties make closing statements. The tribunal panel may then retire to consider their judgement, then reconvene and let you know verbally what it is on the same day. 

Alternatively, they may ‘reserve’ their judgement and inform you that it will be communicated to you in writing shortly.  The judge will then formally close the hearing proceedings.

If you lose your claim and judgment is given orally at the hearing, you might want to request written reasons so that you can appeal to the Employment Appeal Tribunal. You can also request written reasons after the hearing within 14 days of the judgment being sent to the parties.

If you wish to appeal, make sure you do it within the time limit. See our guide on employment tribunal judgements and appeals

 

Want advice on your employment tribunal claim?

Next steps

See our guide on tribunal judgements and appeals, about what a judgement means and whether or not it can be appealed.

If you are considering making an employment tribunal claim or you are currently preparing for a hearing and need legal support, Monaco Solicitors are available to help.

Our specialist employment solicitors have experience in dealing with all types of claims and can provide different levels of support based on your requirements. 

If we can help you, we always seek to resolve your issue as promptly as possible, to your best advantage. To find out more about our no-obligation consultation, contact us:  

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