Defending tribunal claims: hearing and outcome

Sarah-Marie Williams of Clyde & Co LLP continues a series of articles on defending employment tribunal claims with a look at the procedure during, and outcome of, tribunal hearings. The order of proceedings at employment tribunal hearings is explained, as is the treatment of witnesses. 

Arrival at the tribunal

Claimants (ie employees and ex-employees) and respondents (ie employers) and their representatives and witnesses should sign in at reception when they arrive at the tribunal, so that they can be given the correct hearing room and allocated a waiting room. There are separate waiting rooms for claimants and respondents.

If a claimant fails to attend the tribunal or send a representative, the tribunal may dismiss the claim. If the respondent fails to attend or send a representative, it may be prevented from having any further part in the proceedings. Alternatively, the tribunal may adjourn the hearing to a later date if either party fails to attend. If a party is unable to attend the hearing for unforeseen reasons it should contact the tribunal as soon as possible and request an adjournment.

The hearing

Tribunals are normally heard by an employment judge, who is legally qualified, and two lay members. One of the lay members represents the employee perspective (for example a trade union representative) and the other the employer perspective (for example a human resources specialist).In some cases (for example breach of contract claims) the employment tribunal judge sits alone.

The parties' representatives normally sit at tables facing the tribunal panel. The respondent's representative sits at the table on the left side of the tribunal facing the panel and the claimant's representative sits at the table on the right. The parties and their witnesses sit behind the representatives. If the parties are not represented, they sit at the appropriate table.

Tribunals are usually open to the public to observe the hearing and there may be press present. Observers sit behind the parties and their witnesses.

Tribunal hearings usually start at 10am and finish at 4pm with a break of an hour for lunch. During the hearing a party's representative can ask for a short adjournment if he or she wishes to take instructions or consider any new evidence that has been presented. Unrepresented claimants and respondents can also ask for an adjournment. If the hearing is not concluded within the time frame that has been allocated to it, it will not normally continue to the following day as other hearings will have been listed. The proceedings will be adjourned part-heard and a further date that is convenient for the parties and the tribunal will be set.

Order of evidence

The party that has to satisfy the burden of proof in the case usually gives its evidence first. Therefore, the respondent goes first in cases of unfair dismissal (unless there is a dispute about whether or not the claimant was dismissed). In cases of constructive dismissal or discrimination the claimant gives evidence first. However, the employment judge may decide that he or she wants to hear from the other party first and ask the respondent to start giving evidence, particularly where there is a combined burden of proof such as for claims of both unfair dismissal and discrimination.

It is common for both parties' representatives to make opening submissions to outline the claim or defence and the evidence that they will call in support.

Witnesses

When witnesses are called to give evidence they first take an oath on the holy book appropriate to their faith. Alternatively, they may make a civil promise or affirmation, which is a secular oath.

Witnesses sit in a designated seat (the witness box) when addressing the tribunal. They are not required to stand when giving evidence. Witnesses should address the employment judge and panel members as "Sir" or "Madam".

Witnesses give their evidence by reading their statement out loud to the tribunal. Alternatively, tribunal members may read witness statements in private. When witnesses have put their case or given their version of events the other side's representative questions them by way of cross-examination. Following cross-examination, if new matters arise the representative whose witness is in the witness box has the opportunity to re-examine the witness on the new issues only. The tribunal panel is also likely to have questions for witnesses. If there is an adjournment while a witness is giving evidence, he or she must not discuss the case with anyone.

Closing submissions

Once all the evidence has been concluded both parties make closing submissions. The party that called its witnesses first makes the last submission. During closing submissions the parties summarise their case to the tribunal and deal with the legal framework of the claim. The parties also highlight the most important pieces of evidence, give an analysis of the opponent's case and refer the tribunal to relevant case law for it to consider. While final submissions are generally oral the tribunal may ask for them to be in writing.

Judgment

At the end of a tribunal hearing the tribunal panel members attempt to come to a unanimous decision (although majority decisions are permitted) on all the issues before them, and give their decision in the form of a judgment. The judgment may be given orally at the end of the hearing or it may be reserved and a written judgment issued at a later date. The judgment may deal with the issue of liability only and the tribunal may schedule a later hearing to deal with remedy. Alternatively, the judgment may deal with both liability and remedy.

The reasons for the decision can be given orally at the time that the judgment is issued or they can be given in writing at a later date. If reasons for the judgment are given orally, the tribunal will give written reasons only if one of the parties requests them. Requests for written reasons must be made either at the hearing, or in writing within 14 days of the date on which the judgment is given to the parties. If the employment judge considers it just and equitable to do so, this time limit may be extended.

Costs

Employment tribunals do not normally make orders requiring one party to pay the other's legal costs. Costs do not follow the event in employment tribunals as they do in the civil courts where the losing party pays a proportion of the winning party's legal costs. Employment tribunals normally make costs orders only where they are of the opinion that a party or its representative has acted vexatiously, abusively, disruptively or otherwise unreasonably, or where the bringing or conducting of proceedings was misconceived.

Appeals

Appeals against tribunal decisions are made to the Employment Appeal Tribunal (EAT). However, a party cannot appeal against a tribunal decision merely on the ground that it is unhappy with the outcome. An appeal against the tribunal decision must be on a point of law. The EAT will not interfere with an employment tribunal decision in respect of findings of fact unless the findings are perverse (ie the tribunal reached a conclusion that no tribunal could properly have reached on the facts before it). If a party wants to appeal against the tribunal decision it is necessary for it to obtain the tribunal's written reasons.

Next week's topic of the week article will be FAQs on defending employment tribunal claims and will be published on 21 September.

Sarah-Marie Williams (Sarah-Marie.Williams@clydeco.com) is a solicitor at Clyde & Co LLP.

Further information on Clyde & Co LLP can be accessed at www.clydeco.com.