Before reading this article, we would invite all readers to consider Part I and Part II of the Series, “5 Things You Need to Know About UK Employment Tribunals” and “5 Things You Need to Know About Preparing a Tribunal Claim or Defence,” which provide an introduction to employment tribunals in the UK, how they operate and how best to prepare your claim or defence.
This article aims to provide guidance on how employees (the “claimant”) and employers (the “respondent”) can prepare for a tribunal hearing. Nothing in what follows should be viewed as legal advice, and you should always seek advice from someone in possession of the specific facts of your case.
- Tribunal Hearings
Tribunal hearings can be split into preliminary hearings and the final hearing. The preliminary hearing is often the prerequisite to the final hearing; however, they do not occur in every case and are predominantly used when claims are complex and/, or the case involves a claim of discrimination. If your case requires a preliminary hearing, you will receive a letter from the employment tribunal setting out what the employment judge wishes to discuss and what will be decided at the preliminary hearing. This may include:
- setting a date for the final hearing
- particular aspects of the case – e.g., list of witnesses, whether the claim was brought in time, etc
- claims (employees) or responses (employers) to be “struck out” and therefore omitted from the final hearing.
It is important to bring all your paperwork with you to the preliminary hearing, as you may need to provide certain documentation to prove aspects of your case ahead of the final hearing. When a date is set for the final hearing, you must make the employment judge aware of any dates that you or your witnesses (if applicable) are not available.
- Case Management Orders
As discussed in Part II of the Series, preparing your paperwork in advance and creating a chronology of events is important. The tribunal office will provide written instructions setting out Case Management Orders. This is known as giving ‘directions,’ and the purpose is to ensure that both parties are acting properly and matters are proceeding on time. For example, directions will often include deadlines for when the claimant and respondent must provide each other with witness statements. You must follow the directions carefully – it is possible for the employment judge to strike out a claim or response if a party fails to comply with the directions and orders without good reason. Additionally, the employment tribunal will expect you to provide the other party (or their representative) with a copy of any material you send to the tribunal. If you are going to miss a deadline, you must provide reasoning and specify how much of an extension you require.
- Witness Statements
Depending on where your case is heard, you may be expected to provide the tribunal with written witness statements. Where this is required, the employment tribunal will request that parties exchange witness statements 1-2 weeks ahead of the final hearing. This disclosure allows each party a better understanding of what the other is likely to argue and, therefore, assists with preparing questions for cross-examination.
Any witness statements should provide a clear and orderly version of events. It is important that it is complete and accurate at the date of exchange, as the tribunal will not accept any amendments or additions once this has happened. If you have a representative, they will ensure that any witness statements are in the correct form before they are exchanged.
- Producing a “bundle”
A bundle of documents (also commonly known as a “hearing bundle”) is an agreed set of documents that both parties intend to rely on at the hearing. The Case Management Orders will state which party must prepare the bundle and the deadline by which it must be finalised. Case Management Orders often ask that the respondent prepare the bundle; however, this is not always the case. A claimant, even where the tribunal requests the respondent to produce the bundle, must still engage with and assist in agreeing the bundle, including advising the respondent of any particular documents they wish to be included.
There is a standard order in which documents will initially appear in the bundle, as follows:
- the ACAS early conciliation certificate;
- the ET1 claim form and the ET3 response form; and
- any correspondence received from the employment tribunal.
After that, any disclosed documents on which you wish to rely at the final hearing should then be included in the bundle.
If you are responsible for producing the bundle, you will need to provide six copies – one for each party, one for each of the three tribunal panel members, and one for the witnesses.
- The Final Hearing
Historically, cases were heard by three members of the tribunal; together, the tribunal panel. The panel would consist of: the employment judge, a representee of employer’s organisations, and; a representee of employee’s organisations. Nowadays, it is common that a hearing is heard by an employment judge alone without the other panel members. In such cases, parties will usually be allowed to express their view as to why their case should or should not be heard by a single judge.
As hearings are often open to the public, there may be an audience. In certain instances where evidence is of a sensitive nature (e.g., sexual harassment), it may be possible to apply for the hearing to be held in private. Depending on the complexity of the case, the hearing could last anywhere in the region of half a day to several weeks. In most cases, hearings tend to last for three days or less.
In unfair dismissal cases, the respondent will be expected to present their evidence first. Once all the evidence has been led by both parties, both sides will be allowed to present submissions to the tribunal.
This article is the last in the employment tribunal Series. We hope the information provided has been useful. Should you have any questions on anything covered in this article or employment matters generally, please get in touch with Dawn Robertson at dawn.robertson@rooneynimmo.co.uk or on + 1 44 (0)131 220 9579.
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This article is one of a series intended to de-mystify common legal issues for the non-lawyer and entrepreneur audience – they are designed to foster discussion and is by no means exhaustive. These materials are for informational purposes only. Nothing herein is intended nor should be regarded as legal advice. The distribution of this article to any person does not establish an attorney-client relationship with our firm. Rooney Nimmo assumes no liability in connection with the use of this publication. This bulletin is considered attorney advertising under the applicable rules of New York state. Rooney Nimmo UK is regulated by the Law Society of Scotland and Rooney Nimmo US by the New York rules of professional conduct. All attorneys and solicitors listed in this firm stipulate their jurisdictional limitations. Rooney Nimmo in the USA is a law firm registered as a New York State professional corporation.
