A guide to employment tribunal hearings for managers

Introduction

This guide is for all Managers involved in the Employment Tribunal (ET) Process. The aim of the guide is to help you understand your role in the process and what you should expect.

At some point, most organisations will have an Employment Tribunal claim made against them. Some are anticipated and others not.

This guide has been prepared for people who are being called as a witness in an ET. Please read this Guide before giving your evidence. It will help you understand how the Employment Tribunal works, what to say, where to sit and provides suggestions on how to answer the questions.

If you are being called as witness you must not worry about the outcome of the ET affecting your employment. As long as you conduct yourself professionally and tell the truth during the whole process, there will be no ramifications from the organisation's perspective.

Prior to the Employment Tribunal hearing

In order to prepare a company's defence against an Employment Tribunal case, the advocate handling the case will contact all of the Company's potential witnesses to interview them about their personal knowledge of the case. This may happen over the phone or involve a meeting in person. During this call, it is really important for you to be totally honest with the advocate as they will use all of the information you provide to draft a witness statement for you.

Once they have drafted this, they will email/post it to you, so you can make a final check of its accuracy. Please feel free to make amendments to the draft version as once it is finalised and been provided to the claimant, changes are very difficult to make and can cast doubt on the credibility of your statement.

Prior to the ET hearing taking place, you should receive a bundle of documents (to be referred to in the tribunal, i.e., notes of hearing, evidence, payslips etc.) as well as a finalised copy of your witness statement. For your information, you may also be sent a copy of the claimant's witness statement, and the statements of other witnesses who will give evidence at the hearing, to help you prepare. 

You must read through your statement carefully and make sure you are familiar with it and the documents that it refers to in the bundle. You should also familiarise yourself with any relevant policies and procedures.

The Employment Tribunal process

Hearing arrangements

As soon as a date is arranged, you will be advised of the time and location of the hearing. Always allow plenty of time for your journey to the tribunal and make sure you have contact numbers to hand in the event that you are delayed for any reason on your way to the ET. You should also bring your bundle of documents and witness statements.

You will meet up with the advocate early on the day of the hearing in the ET offices. This gives opportunity to run through the order of the proceedings, raise last minute questions, queries or concerns. Occasionally, our advocates are in the area the night prior to the hearing. In this situation, you are welcome to request a meeting with them. It is natural to feel anxious or concerned about attending an ET, so if we can help in any way, please ask.

Arriving at the Employment Tribnal offices

When you arrive for the hearing, you will be asked which case you are attending and your role in proceedings (i.e., witness), and then you will need to sign in. You will be directed to the Respondents' waiting room where you will meet up with the Advocate. Claimants have their own separate waiting room.

Before you give evidence, you will need to 'promise to tell the whole truth' and a clerk will check your name and job title, and ask if you wish to be sworn in on the bible, any other religious text, or if you wish to affirm (a non-religious alternative). This means that you will either hold a religious text of your choice, or just raise your right hand, when making your promise.

The clerk will come back when it is time for the hearing to begin and take the company's party through to the ET room.

The Employment Tribunal hearing

While the hearing is much less formal than other court proceedings, the questions of evidence and law that will be determined by the panel are extremely serious. The company's reputation and public profile can be affected by the outcome of the proceedings, as hearings are open to members of the general public. You may find students, the Claimant's family and friends, and, occasionally, reporters sitting at the back of the room.

Layout of the Employment Tribunal room

Most ET rooms are laid in the same way. Whether the case is heard by a Judge alone or there are three members of the panel, they will usually sit on a slightly raised platform facing the Respondent and the Claimant with the witness table set to one side of the room, between them.

Seating arrangements for witnesses will vary depending on which part of the county you are attending the tribunal. In England and Wales, before and after giving evidence, all witnesses may sit behind their representatives. In Scotland, the witnesses remain in the waiting room until called to give evidence. Once they have given their evidence, they may sit behind their representative.

Employment Tribunal panel members

For unfair dismissal, breach of contract and/or unlawful deduction of wages cases, the Judge usually sits alone. For all other cases, there is a Tribunal panel made up of a Judge and two Lay Members. The Judge is usually a lawyer with considerable knowledge and experience in employment law. One Lay Member is drawn from a panel of a people representing employers and the other from a panel representing employees. They do not usually have formal employment law training and are encouraged to use their workplace knowledge and experience when assessing cases. The members of the Panel should be addressed as "Sir" or "Madam".

The order of proceedings

When the clerk takes the respondent and claimant parties into the ET room, you may sit down until the Judge or panel arrive. When the judge or panel arrive, you are expected to stand until the Judge asks all present to be seated.

The judge will address the room and explain the reason for the proceedings. If the claimant is not represented, the judge will explain the order of the proceedings to ensure that they understand what is going to happen.

The type of claim being made will determine the order in which the evidence is heard in an ET.

Giving evidence at an Employment Tribunal

As a witness, you will be asked whether you are prepared to swear under oath, or affirm, that your testimony will be true. Having taken the oath or affirmed, you will be asked to sit down to give your evidence. In England and Wales, there will be a copy of your witness statement and the bundle of documents on the table. It is expected that your statement will be 'taken as read' and, therefore, it is unlikely that you will be asked to read your witness statement aloud. This means that the first time you will be asked to speak is likely to be in response to questions put by the Claimant or Claimant's representative. For this reason, it is important that you are as familiar as you can be with your statement prior to going into the hearing that morning.

The Judge may, however, direct that the witness statement be read out and if you are asked to do this, you should have regard for the following points. You should read your witness statement out slowly, clearly and carefully. As it is read out, your advocate may stop you to refer you to documents in the bundle, and pause to allow time for the documents to be read. After questions about the document have been asked, you will be asked to continue to read your statement. When you come to the end of your statement, our advocate may ask you a few supplementary questions, which may have already have been discussed with you or which arise from evidence you have already given (e.g., for clarification where there is ambiguity). The purpose of these questions is to draw out more relevant information or add further support to a point brought up in your statement.

Remember when taking the witness stand, whether giving your own evidence or answering questions, it is important that the Tribunal panel hears your evidence clearly. Therefore, you should face the Tribunal to give your answer, regardless of who has asked you the question. This seems quite unnatural and it is unlikely that you will always remember to do this, but do make sure that your answers can be heard, not just by the Tribunal but also by your representative.

Cross examination

This can be one of the most uncomfortable parts of the hearing for you as you will now be asked questions by the Claimant or his/her representative. If the Claimant is unrepresented, the Judge will help them out and or/direct them. This process can be made easier by following these rules:

• Address your answers to the Judge wherever possible and use eye contact.
• Listen very carefully to the questions you are asked and make sure you understand what you are being asked. If you don't, say so.
• Stick to the question asked. Don't ramble from the point or volunteer more information than was requested. If more information is required, further questions will be asked.
• Answer the question in a straightforward and honest manner. If you are evasive or cautious with your answers, the panel may think you have something to hide.
• Remain honest and polite, however much you are provoked. If you try to be clever, evasive or show anger, this may give the impression that you may have acted in this way when dealing with the claimant.
• If you have answered the question, but there is some silence before the claimant or the claimant's representative asks the next question, don't feel the need to fill that silence. The silence may be genuinely be due to them thinking of the next question or it may be a tactic to make you feel awkward and say something beyond what you need to say.
• Speak calmly and clearly. The ET panel expect you to be nervous.
• Sit up straight and pay close attention. Be aware of your body language and try not to adopt defensive postures such as crossing your arms or covering your mouth. Equally, do not appear too relaxed and informal, e.g., leaning back in your seat or fiddling with pens etc.

Throughout the hearing, the members of the panel will be watching all those taking part in the proceedings, whether they are giving evidence at the time or not, so please be aware of our conduct and body language, when sitting in the room waiting to or having given evidence.

Questions from panel

The judge and members of the panel may wish to ask you questions at this stage. Usually this is for clarification of your evidence, but sometimes it can be hard to see the relevance of the questions or what they are aiming to show. The panel will form a view of you, and the reliability of your evidence and actions based on the way you answer questions.

Re-examination

This is an opportunity for your advocate to ask further questions at this stage but in most cases it is unnecessary.

Other witnesses

Once you have given your evidence, the Judge will release you from the witness table and you may sit behind your advocate while the proceedings continue. At this point your duty is completed and you are usually free to leave the tribunal building if you wish. Your advocate may ask you to remain in the room however, in case anything arises from any other witness' evidence. Very occasionally, you may be called back to give further evidence if the Claimant has raised unexpected matters that only you can answer.

The next witness will be called and will be taken through the same process until all of the Company witnesses have given evidence. The Claimant and any of the witnesses will also give evidence and be cross-examined as explained above.

Please do not talk whilst other witnesses give their evidence. If you would like to point out something to our solicitors, please write down the question/point and hand it to your advocate.

Breaks in the hearing

If, while you are being cross-examined, the ET is required to break, for example, for lunch, you are not able to discuss your evidence or exchange views on how the case is going with anyone. If your colleagues or representative need to discuss the case, you should be excluded from that conversation. You remain 'under oath' throughout any such break.

Closing

After all the evidence has been presented, the Judge will ask both sides if they wish to make closing submissions. This is the opportunity for your advocate to summarise our case and refer to relevant legislation and case law on previous cases involving similar facts.

Once both sides have made submissions, the Judge will send both parties back to their respective waiting rooms while the panel retire to consider their judgement.

The judgment

The panel will take time to discuss the legal merits of the case based on the evidence that they have heard and will try to come to a unanimous judgement.

The ET usually reaches a judgment on the day of the hearing, but if they are unable to, they will normally write within 5-6 weeks with the judgment. Your adviser contact will inform you and the witnesses of the ET's judgment once it has been received.

If the judgment is delivered on the day, whether it is favourable or unfavourable to us, it is important to remain impartial and to wait until all the parties have dispersed before expressing views to your advocate and colleagues.

And finally

There are also a couple of courtesy points to be aware of whether attending the Tribunal as a witness or just sitting in the hearing room to hear the case. All mobiles and other electronic devices should be switched off and there should be no eating or drinking in the room other than the water that is provided. At any time that you are in the room but not actually in the witness stand, you are free to come and go as you please. Remember, however, that this can be a distraction and, therefore, should be limited to where it is necessary, e.g., for a comfort break. If you are due to give evidence at an ET hearing and would like to familiarise yourself with the ET environment in advance, please raise this with your employer. It may be possible to arrange for you to observe a hearing at the same ET hearing centre to reduce nerves when your own hearing arrives.