If you and your employer are unable to settle your dispute, your case may end up at an Employment Tribunal where a Judge will decide whether either side has acted unlawfully.
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The thought of going to an Employment Tribunal may make you feel nervous. But as long as you are prepared for the occasion, and understand what is going to happen, there is no reason to be.
Furthermore, if you have a legal representative, he/she will handle everything on your behalf. This includes preparing all the paperwork, negotiating a settlement if appropriate, and cross-examining the witnesses.
What is an Employment Tribunal Like?
The first thing to say about an Employment Tribunal is that it isn't like the Court rooms you see on TV. Typically Employment Tribunal hearings are held in small rooms, and the Judge doesn't wear a wig or gown. Still, it's still a good idea to dress smartly, and remember to address the Judge as 'sir' or 'madam'.
Unless the dispute is particularly sensitive (such as a sexual harassment case), Employment Tribunals are open to the public, so there may be other people in the room that you do not know. This means that your friends and family can attend to support you, if you wish. But it's important not to talk to each other while the Tribunal hearing is in progress.
You can represent yourself, or you can instruct an Employment Solicitor to act on your behalf. If you have an Employment Solicitor, he/she will advise you in greater detail as to what will happen on the day. It will also mean that you don't have the daunting task of preparing all the paperwork (including your witness statement), cross-examining witnesses, making opening/closing statements, and negotiating a settlement.
Last Minute Settlements
When you arrive at the Tribunal, you'll be shown into the Claimant's waiting room. Your employer will sit in a different waiting room, so you won't have to interact with each other beforehand. However, your employer's legal representative may come to you with a last minute settlement. If you have your own Employment Solicitor, he/she will negotiate on your behalf. If you don't have legal representation, you'll need to handle this yourself.
If you do reach a last minute settlement, you won't have to go through with the Employment Tribunal. In certain circumstances, the Tribunal may be able to record the details of the settlement or make a copy of the agreement reached. This can be extremely useful, as you'll then have an official record of the agreement that was reached.
Beginning the Employment Tribunal
If a last minute settlement isn't achieved, you'll be shown into the Employment Tribunal hearing at your allotted time. In the room you will typically see a desk at the front, usually on a raised platform. This is where the Employment Judge or panel sit. There will then be two desks beside each other, labelled 'Claimant' and 'Respondent'. You and your legal team will sit on the Claimant side, and your employer on the Respondent side.
Some cases will be heard in front of just one Employment Judge, while others will be heard in front of a panel. If there is a panel, there will be three people – a Judge, someone who represents employees' organisations, and someone who represents employers' organisations.
The Judge or panel will then decide whether you or your employer should speak first. This depends on the type of case that you are brining. Generally, in a constructive dismissal or discrimination case, you will go first. But in an unfair dismissal case, your employer will go first.
Sometimes each side will begin by making an opening statement. This essentially sets out the details of the case. If you don't have legal representation, you will need to do this yourself. If you are not invited to make an opening statement, the Tribunal may want to discuss the issues which need to be addressed. The Tribunal will then probably adjourn to read the witness statement and relevant documents. Otherwise, the Tribunal will go straight into hearing the witness evidence.
Hearing Witness Evidence
Each side will exchange evidence in advance of the Employment Tribunal, so it will be assumed that your witness statement has already been read by those present. This means you won't have to read your witness statement aloud. If you are going first, then your employer's legal representative will start by asking you questions about your statement. This is known as a cross-examination.
The thought of cross-examination makes many people uneasy, and it's true that the legal representative may try to pick holes in your story. But try to remain calm and answer everything truthfully. As you will not have read your witness statement aloud, it's a good idea to read it before the Tribunal hearing starts, to make sure it's fresh in your mind. The Judge may also interrupt at times to ask questions. If you are asked anything you don't understand, be sure to ask for further explanation or for the question to be repeated, so that you can think about it carefully.
Once this is finished, your Employment Lawyer (if you have one) may also ask you questions. This is called a re-examination and it helps to clarify your case.
If you have any other witnesses to support your case, they will be called up in turn after you. Again, your employer's legal representative will ask each of them questions during cross-examination. You or your Employment Lawyer can then ask further questions during a re-examination.
If you have gone first, it will then be your employer's turn to give evidence. As long as you have an Employment Lawyer, you won't need to do anything else. Your Lawyer will cross-examine each witness and handle proceedings from here. But if you don't have legal representation, you will need to cross-examine your employer and their witnesses yourself.
When all the evidence has been heard, each side will be invited to make their 'closing submissions'. This gives you (or your Lawyer) the chance to sum up your case and put your arguments forward, highlighting how the evidence shows you have been wrongfully treated.
Reaching a Decision
Once the closing submissions have been heard, the Judge or panel must make a decision as to how the case should conclude.
It's worth noting here that in some instances the case will be adjourned, which means it is stopped and will resume another day. This usually happens when the Tribunal hearing runs out of time or one person wants to consider an out of Court settlement. Other times the Judge or panel will actually stop the Tribunal, perhaps because one side admits fault, or it is abundantly clear what the outcome should be.
Ordinarily, however, the Judge or panel will leave the room to consider their decision. In straightforward cases, the Judge or panel will then return to give their verdict. In more complicated cases they may require more time to think about the case and so will announce that they will be issuing a 'reserved judgement' at a later date. When this happens, you will receive a letter containing the Employment Tribunal's verdict which is called the 'Judgment'.
What Happens if I Win an Employment Tribunal?
The Employment Tribunal will decide whether you have been unlawfully treated. If it thinks you have been, then you have won your case. What happens next really depends on what the Employment Tribunal orders, and what your employer does next.
For example, your employer may decide to appeal the decision. If so, the case will go to the Employment Appeal Tribunal and will continue there.
If not, the Employment Tribunal may encourage you and your employer to reach a settlement. Your Employment Lawyer can negotiate the terms on your behalf, which may include a sum of compensation, a reference and other terms considered reasonable. Otherwise, the Employment Tribunal will make an award of compensation for you. Before doing this, the Tribunal may want to hear evidence about what you have done to find new employment, if you were dismissed, or about how your feelings have been injured by the unlawful treatment.
What Happens if I Lose an Employment Tribunal?
If the Employment Tribunal finds against you, you may be able to take your case to the Employment Appeal Tribunal.
At this stage the case will hinge on complex legal arguments, so if you haven't already instructed an Employment Lawyer, we suggest that you do so.