1. ATTENDING AN EMPLOYMENT TRIBUNAL
This guidance note is intended as a useful overview of the main points to consider if you
have to attend an employment tribunal hearing. It does not constitute legal advice, and
we recommend that appropriate advice tailored to your specific circumstances is always
sought at an early stage.
Attending a tribunal hearing can be a daunting prospect, particularly if you have never
done so before. We’ve tried to demystify what happens at a hearing, and have collated
some practical tips to help smooth your attendance. Feel free to pass this resource on to
anyone in your organisation, such as managers or HR representatives, who may be
attending a hearing either to observe or give evidence.
Do you have any comments or questions on this subject? If so, we’d love to hear
from you. Email us at updates@mpmlegal.co.uk.
Arriving at the tribunal
• Know how to get there.
• Be on time - aim to arrive about an hour early.
• Bring a copy of your witness statement.
• Book in with reception.
• Find the correct waiting room (Respondent if you are there on behalf of
your employer).
• Meet your legal team.
• The walls have ears. Be careful not to discuss your case outside of the
Respondent’s room or loudly within the Respondent’s room.
The hearing room
• They vary in size but are laid out in a conventional way.
• The tribunal composition is typically two lay members and a judge,
although this depends on the type of claim.
• Tribunal members face the rest of the room usually on a slightly raised
platform.
2. • Two desks will face the members with room for the parties and their
representatives.
• The Respondent will sit on the left hand side of the room.
• There are chairs at the back. The hearing will normally be public and so
you may have the press or law students or training union representatives
present during the hearing.
• If you are giving evidence, you will sit at the witness table which is usually
between where the Respondent and Claimant sit.
Formalities
• What to wear – there is no dress code. If you are a witness aim for smart
and reasonably subdued – probably what you would wear for a job
interview.
• Forms of address – the judge is ‘madam’ or ‘sir’, as well as the lay
members – not ‘your majesty’, ‘your honour’ or ‘my lord’ (we’ve heard all
of these!).
• Everyone remains seated apart from the witnesses who stand whilst they
are being sworn in to give their evidence.
The shape of the hearing
• Tribunals have a wide discretion over how to run the hearing but there is a
conventional order which is followed.
• The judge will normally introduce herself and her lay members and then
state what the issues are.
• There may be some housekeeping or applications, then the hearing will
probably progress as:
o Claimant calls first witness.
o Respondent cross examines.
o Claimant re-examines.
o Claimants calls second witness.
3. o Respondent cross examines.
o Claimant re-examines.
o And so on until all of the Claimant’s witnesses have given evidence.
o Respondent calls first witness.
o Claimant cross examines.
o Respondent re-examines.
o And so on until all of the Respondent’s witnesses have given
evidence.
o Respondent makes closing submissions.
o Claimant makes closing submissions.
Reading time
• In most cases the tribunal will read the claim form and the defence form
on the morning of the hearing.
• If it is a complicated case or there are lots of documents to consider then
the tribunal may ask for some reading time.
Evidence
• Evidence in chief: this is the evidence a witness gives in her own
statement or under questioning by her own side’s representative.
• Cross examination: this is the questioning of a witness by the other party’s
representative.
• Re-examination: this happens after a witness has been cross examined
and their representative is allowed to ask further questions.
• Leading questions are questions which indicted the expected answer,
e.g.”Mr Smith then hit you on the head with a blue ring binder didn’t he?”
• “What happened next” is not a leading question.
• Leading questions are strongly discouraged in evidence in chief and re-
examination (when your own side’s representative is asking you
4. questions) as the impact of a witness agreeing with statements formulated
by their own lawyer is less than the impact of an account given in her own
words.
• In cross examination leading questions are essential (e.g. ”you swore at
the Claimant before pushing him out of your office didn’t you?”)
Being called as a witness
• This means being asked to the witness table to present your evidence.
• Your representative should introduce you and get you started.
• You will have a clean copy of your witness statement and the hearing
bundle of documents on the witness table in front of you.
• Do not take any of your own papers or documents to the table.
• You will take the oath or affirm – the oath will be taken on a holy book, an
affirmation is a solemn civil promise not linked to a religious belief.
• You will probably be expected to read your statement aloud.
• If you refer to documents in your statement then the tribunal will probably
want to pause and read the document you are referring to. Be guided by
your representative on this.
• When speaking, direct your answers to the Tribunal. It is natural to want
to turn to the person asking you the questions but the Tribunal need to
hear your answers.
Cross examination
• Once you have read your statement the other side’s representative will
ask you questions.
• This may be leading questions.
• The purpose of cross examination is not to batter you into submission but
to convince the tribunal.
• The questions should be firm but polite with no drama.
5. • All parties should have to opportunity to cross examine each others
witnesses.
Re-examination
• Once you have been cross examined then you might be asked further
questions by your side’s representative.
• However, re-examination can often do more harm than good so don’t be
surprised if you are not asked any additional questions.
• It is an opportunity to repair any damage.
Tribunal questions
• The tribunal may have their own questions to ask you.
• No set point when they do this. Might be as the evidence progresses or at
the end of the parties questioning.
Submissions
• After the witnesses have given their evidence each side has an opportunity
to make submissions to the tribunal.
• This is a speech seeking to persuade the tribunal to find one way or the
other.
After submissions
• The tribunal will adjourn to make a decision
• A decision could be reached on the day or the parties could be told that
they will receive the outcome in the post.
What can go wrong
• You are delayed – take a note of your lawyer’s number or the number of
the tribunal so you have someone to call to let them know.
• You are ill and cannot attend – again, let your representative know as
soon as possible as they may need to apply for a postponement of the
hearing.
6. • The tribunal is not prepared to go ahead – this is very common as
tribunals are overbooked. Your case may be floating which means it has
no allocated Judge and you wait for one to become free. This can take a
long time so take something with you to read.
Do:
1. Dress appropriately.
2. Make sure you are familiar with your witness statement, that of your colleagues
and any documents referred to in your statement.
3. Practice reading your statement aloud.
4. Make sure the statement is in your own words and that you are comfortable with
everything in your statement.
5. Speak slowly and clearly and address your answers to the tribunal members.
6. Be respectful and attentive to the tribunal members.
7. Take your time and do not answer questions without thinking about the question
properly.
8. If you need more time to answer a question or if you would like the question
repeated then ask.
9. Answer questions as accurately as you can.
10. Remain calm.
Don’t:
1. Don’t be forced to answer a question you don’t know the answer to. It is better
to say “I don’t know” then try and make something up or guess at a response.
2. Don’t make things up – it is better to be truthful and stick to the facts.
3. Don’t try and answer a question you do not understand. Ask for it to be
rephrased.
4. Don’t start answering before the question has been put to you. Allow the
representative to finish.
7. 5. Don’t memorise your story or statement. You do not want your answers to sound
rehearsed and its possible that the questions will come to you in a different order
to the facts anyway.
6. Do not lose your temper.
7. If the tribunal breaks for lunch or the hearing ends before you have finished
giving your evidence then you must not discuss the case with anyone unless the
tribunal specifically tell you that you are no longer still under oath.
8. Don’t argue with the Judge or the other side’s representative.
Sound interesting?
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