Managing the Employment Tribunal Process
Employers, whether facing an Employment Tribunal claim for the first time, or those who have been through the process before, are likely to require assistance in navigating their way through the litigation process. It is important to act quickly, gather relevant evidence and comply with tribunal deadlines to put your organisation in the strongest position to defend a claim.
In Part 1 we covered the steps employers can take to avoid and prepare for Tribunal claims including responding to a claim, Acas conciliation, disclosure, limitation periods and steps that can be taken if you miss Tribunal deadlines. Read the full article here
This insight is part two, where our Employment team continue their comprehensive guide for businesses facing Employment Tribunal claims, this time looking at how to manage the Tribunal process.
Are Employment Tribunals public?
Yes, the majority of employment tribunal hearings are public hearings which means any member of the public, including members of the press, can attend the tribunal to listen to the evidence and judgement. The written decision is then made public on https://www.gov.uk/employment-tribunal-decisions.
Where does everyone sit at an Employment Tribunal?
In most cases, where a tribunal hearing is held in person, there will be a tribunal panel of three people comprising an experienced employment Judge and two lay members. However, some cases can be heard by a single employment Judge sitting alone.
The Judge and any lay members will be sitting at a slightly raised desk. You, your legal representative (if applicable) and the claimant will be seated in front of them, with witnesses and members of the public located at the back of the room. Witnesses will be called in turn to give evidence from a separate table located towards the front of the tribunal room.
Will the Employment Tribunal be in person?
The tribunal will decide if the tribunal hearing will be held in person or by Cloud Video Platform (‘CVP’). This is dependent on the availability of the tribunal venue, the preference of the parties and the Judge.
If there is to be a preliminary hearing to provide case management orders (i.e. the tribunal’s instructions and timetable for how the case will proceed) this is usually held over the telephone or by CVP.
Will I have to be a witness?
Witness statements are usually given voluntarily but if you are not willing to give evidence at a hearing, a party can consider applying to the tribunal for a witness order compelling you to attend a hearing to give oral evidence or produce documents and information. It is the tribunal’s decision as to whether to make a witness order and will generally depend on the importance of the evidence you can provide.
How do I prepare a witness statement?
The tribunal will direct parties to prepare written witness statements. Each statement is required to be in the first person and set out the evidence that each witness will provide at the final hearing.
The witnesses’ recollection of events should be presented in a clear and logical fashion and will often refer to relevant documents. Where a witness statement is drafted by someone other than the witness themselves, for example a lawyer or an HR professional, the witness must be entirely comfortable and in agreement with the content of the statement.
Following witness statements being finalised and signed they will be provided by each party to the other at a date specified by the tribunal for exchange of statements.
If I give a witness statement will I need to give evidence at a hearing?
Your witness statement will be taken as read by the tribunal this means you will not have to present it to the tribunal. It may not therefore be necessary for you to give evidence at a hearing. However, if you want a tribunal to attach weight to the evidence in your statement then you will need to attend the hearing (either in person or via CVP) to be cross-examined. You will be provided with a copy of your witness statement in advance and will have the opportunity to remind yourself of the content of your statement.
Do I need to provide evidence on oath?
If you are called to give evidence at the hearing you will be asked to take the oath. This involves either swearing on your holy book of choice that you will tell the truth, or providing an affirmation which is a promise to the tribunal that you will tell the truth.
Can I ask questions?
Your role as a witness is to give evidence and answer questions, not to ask questions. However, if you do not understand something which is said by the tribunal panel or a representative then it is important that you raise this and ask for clarification. When addressing the Judge you should call them Judge and not ‘sir’ or ‘ma’am’. When addressing the panel lay members you should call them ‘sir’ or ‘ma’am’.
Can I refuse to answer?
You should try to answer all questions honestly. Keep calm and take your time. If you do not understand a question you can ask for clarification. If you do not know the answer then you should state that, or if you cannot remember then again you should explain this.
Can I leave once I have given witness evidence?
Once you have completed giving all of your witness evidence, you may leave. However, you should wait until the employment tribunal Judge has given you permission to leave.
If the tribunal takes place over multiple days, can I talk to other witnesses?
Save for when you are under oath you are able to talk to other witnesses about the case. Please be aware however that if you are in the middle of providing evidence and the tribunal either stops for a break or adjourns overnight, you will remain under oath and must not therefore discuss the case with anyone until you have finished giving your evidence. You can, both before and after giving your evidence, listen to the evidence given by other witnesses.
Who decides whether the claim is successful?
Following hearing all of the evidence, the employment tribunal panel will deliberate and decide whether the claim is successful or not. The decision is a majority decision where
the claim is heard by a tribunal panel or in the case of a Judge sitting alone, the Judge will make the decision.
When will the tribunal provide their judgment?
Judgment will be given by the employment tribunal Judge either orally at the end of the final hearing or in writing and sent to the parties or their representatives at a later date. Due to the backlog in the tribunals this can take some time, but Judges aim to provide written judgement within 30 days of the final hearing.
If we win, can we claim our legal costs back?
Unlike in the civil courts costs do not generally follow the event and the Employment Tribunal will only award costs in exceptional circumstances. A tribunal may make a costs order or a preparation time order where it considers that a party (or that a party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the claim or the way that the claim has been conducted or if any claim had no reasonable prospect of success.
What happens if we lose and can we appeal?
An employer who loses may be ordered to pay compensation to the claimant. As the hearing is usually public, there is also a potential for negative publicity and reputational damage if you lose the case.
The tribunal will work out what to award the claimant, they set limits on the amount the claimant can get. You cannot usually be ordered to pay compensation for injury or upset caused to the claimant at work unless the claim includes an allegation of discrimination and the tribunal decides that you did in fact discriminate against your employee on one of the protected grounds for example sex, race, disability.
If you are unhappy with the tribunal’s decision you may challenge the decision. This can be complex and you will likely need specialist advice on whether you can apply for the case to be reconsidered or appealed to the Employment Appeal Tribunal.
You can only appeal to the Employment Appeal Tribunal if you believe the Employment Tribunal made an error on a point of law. You will not be permitted to appeal just because
you think the decision is wrong and you are unhappy with the decision.
If you chose to appeal, you must generally do so within 42 days of the date the decision was sent to you.
What happens if I win?
Firstly, celebrate!
In more practical terms, it would be beneficial to note down the time period for appeal. You cannot assume the claimant will not appeal the decision; they generally have 42 days to appeal.
Secondly, you need to consider whether to make an application for costs. As we’ve noted, costs are not often awarded in tribunal claims, this will be dependent on the behaviour of the claimant and sometimes any offers made save as to costs will be taken into account.
Finally, it would be beneficial to have a debrief with those involved in the tribunal process to establish any lessons learnt during the tribunal process and any changes you may wish to make to policies or procedures as a result.
Can I settle an Employment Tribunal Claim once it has been started?
You can settle an employment tribunal claim at any time during the process.
What does without prejudice mean?
“Without prejudice” is a legal mechanism which limits who can see particular communications. For example, if you make a “without prejudice” settlement offer in an attempt to settle a tribunal case then neither party will generally be able to show that letter to the tribunal to try and prove their case. This allows full and frank communications to be had particularly during settlement negotiations.
As a team, we have significant experience in managing tribunal litigation. As indicated at the outset our aim is to make the tribunal procedure as painless as possible for you, guiding you step by step through the process from beginning to end.
To watch both our webinars “A Guide to Employment Tribunals” please click HERE
If you have any questions in relation to avoiding, preparing for or defending an Employment Tribunal claim, please contact the Employment Team and we will be happy to help.