Hearing and judgment
Dates listing
The dates of a final hearing may be fixed at a preliminary hearing. Otherwise, the Employment Tribunal will send the parties a dates listing form to request unsuitable dates within with a specified period during in which the case is expected to be heard. This is referred to as the "dates the listing period." The form will also specify a date for its completion and return to the Tribunal.
The parties must complete the form and clearly indicate any unsuitable dates for attending a final hearing, including unsuitable dates for any witnesses. It is the responsibility of the party who is calling any witness to check the availability of that witness. An indication must also be given in the form about the length of time each witness will take to give evidence. This will allow an Employment Judge to determine how many days it will take to hear each side of the case.
The dates listing form must be completed and returned to the Employment Tribunal by the specified date. If the form is not returned by the specified date, the hearing will be listed without further consultation. Once the final hearing is listed, a postponement will only be granted in exceptional circumstances.
If there are no convenient dates in the listing period, the hearing will be listed in the month after the listing period without further consultation (although, if this happens, generally a hearing will be re-listed if the dates are inconvenient).
Notice of final hearing
The parties are informed of the final hearing dates when the Employment Tribunal issues a notice of final hearing.
The final hearing
An Employment Tribunal hearing is chaired by a legally qualified Employment Judge. With effect from 6 April 2012, an Employment Judge can hear unfair dismissal claims sitting alone. The Judge may also sit alone in breach of contract and holiday pay claims. In other cases, for example, discrimination claims, an Employment Judge will sit with two non-legal panel members (sometimes referred to as lay, wing, or Tribunal members) which is referred to as a "full Tribunal." Lay members bring a practical and specialist knowledge to the proceedings; for example, in many cases, the lay members will have management or trade union experience.
A party to the proceedings may make a case management application for an unfair dismissal claim to be heard by a full Tribunal if that party believes that the specialist knowledge of the lay members will assist in the determination of the claim. An explanation of why the party believes this must be included in the application which will be considered by an Employment Judge. The application should be made at the same time the dates listing form is returned to the Employment Tribunal.
Lay members listen to the evidence in conjunction with the Employment Judge and may question parties and witnesses. Lay members take an equal part in the judgement of the case and are advised on points of law by the Employment Judge.
Generally, a final hearing will be open to any member of the public (although the public rarely attends hearings).
The 2013 Rules provide that the hearing may be conducted, in whole or in part, by use of electronic communication (including by telephone) provided that the Tribunal considers that it would be just and equitable to do so, and the if parties and members of the public attending the hearing are able to hear what the Tribunal hears and see any witness seen by the Tribunal.
Restricted reporting orders
Proceedings can be reported in the media. At any stage during the proceedings, an Employment Tribunal acting on its own initiative, or on the application of a party, may make an order to prevent or restrict the public disclosure of the proceedings so far as it considers necessary in the interest of justice, to protect the rights of any person under the European Convention on Human Rights, or in the circumstances as identified in s.10A of the Employment Tribunals Act 1996 that relates to confidential information. The 2013 Rules state that in considering whether or not to exercise this power, the Tribunal must "give full weight to the principle of open justice and to the Convention right to freedom of expression."
Such orders may include:
-
An order that a hearing that would otherwise be conducted in public, be conducted in private (in whole or in part).
-
An order that the identities of specified parties, witnesses, or other persons referred to in the proceedings, should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing, or in its listing, or in any documents entered on to the register of all required judgements and written reasons maintained by the Lord Chancellor, or otherwise forming part of the public record.
-
An order for measures preventing witnesses at a public hearing being identifiable by members of the public.
-
A restricted reporting order within the terms of ss. 11 or 12 of the Employment Tribunals Act 1996.
Any party, or anyone who has a legitimate interest, and who has not had a reasonable opportunity to make representations before such an order is made, may make a written application to the Employment Tribunal requesting that the order be revoked or discharged, either on the basis of written representations, or if requested, at a hearing.
Where one of the above orders is made:
-
The order must state the person whose identity is protected, and may state particular matters of which publication is prohibited as likely to lead to the identification of that person.
-
The order must state the duration of the order.
The Employment Tribunal must ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed as required by the 2013 Rules.
The Employment Tribunal may order that it also applies to any other proceedings being heard as part of the same hearing.
An Employment Tribunal has particular powers to make restricted reporting orders in relation to cases involving allegations of sexual misconduct, or disability discrimination where evidence of a personal nature is likely to be given.
In X v Stevens [2003] IRLR 411 EAT, the Employment Appeal Tribunal stated that Tribunals might also make orders to protect the identity of a Claimant, where the Claimant would be deterred from bringing proceedings in the absence of such an order.
In F v G EAT/0042/11, which was a case that fell outside the Tribunal's normal powers to grant anonymity, the EAT that a permanent anonymity order was nevertheless appropriate in the particular circumstances, in order to protect the rights of certain third parties under article 8 of the European Convention on Human Rights which sets out the right to respect for private and family life.
Documents for the final hearing
The parties will be required to bring copies of any documents that are to be relied upon as evidence at the final hearing. Those documents are normally referred to as a "bundle." It is also normal to include any case law that a party intends to refer to at the final hearing, although in practice well-known case law is not always included.
The documents are usually exchanged and agreed between the parties and produced by the Respondent as "joint bundle." The joint bundle should be delivered to the parties (including the Employment Tribunal) at least 14 days before the final hearing A Claimant should also include a schedule of loss (which is an indication of the Claimant's financial losses and what awards the Claimant expects from the Employment Tribunal).
In claims where an Employment Judge sits alone, four bundles will be required, for example, a bundle for the Employment Judge and witness desk and one for each of the parties. Six bundles will be required in cases that are to be heard by a full Tribunal, for example, an extra two bundles for the lay members. Where the parties are represented, it may also be helpful to have additional bundles, for example, a bundle for the Claimant and the Respondent.
Only documents that are to be referred to at the final hearing should be included in the bundle. Moreover, an Employment Tribunal will not have to consider or refer itself to any documents that are not referred to by a party at the hearing. In Joseph v Brighton & Sussex Hospital NHS Trust EAT/0001/15, the EAT held that there is no obligation on an Employment Tribunal to look at any documents in the bundle that was not referred to during the hearing.
The hearing
Most final hearings start at 10:00 am and finish around 4:00 pm with a break for lunch in between. Parties, including any witnesses, should arrive at least 15 minutes before the hearing is due to start. The parties are required to report to the Tribunal reception to let the Tribunal know that they have arrived. This must be done on each day that they attend the hearing. All the parties will be directed to either the Claimant's or the Respondent's waiting room.
The hearing usually begins with the Employment Tribunal dealing with any preliminary matters which normally involves defining the issues in dispute and ensuring that the relevant legal issues are clearly understood.
An Employment Tribunal has the discretion to decide the order of proceedings and which party is to put its case first. It is usual for the party upon which the burden of proof rests to give evidence first. In constructive dismissal and discrimination claims, normally this will be the Claimant. In unfair dismissal claims, normally this will be the Respondent.
The Claimant and Respondent are permitted to hear all the evidence that is presented to the Employment Tribunal. However, witnesses cannot hear any evidence until they have given their own and will have to wait in the waiting room until they are called to give evidence. When they are called, each witness, including the Claimant, will give evidence on oath or affirmation. During the hearing, the Claimant and witnesses sit at a "witness desk" when giving evidence. When they have finished giving evidence, witnesses will normally be allowed to leave the Tribunal or to stay to hear the rest of the case.
If the Claimant is called first to give evidence, then evidence will be heard first from each of the Claimant's witnesses. This is called "evidence-in-chief." During evidence-in-chief, it will not be permissible for a party to ask leading questions of its witnesses. These are questions that suggest the answer that is sought by the person asking the questions.
It is open for the Respondent's representative to cross-examine the Claimant and each of the Claimant's witnesses after they have given their evidence. Cross-examination involves putting a series of questions to a witness to test the truth or reliability of what that witness has said. Cross-examination can also be used to put allegations to a witness about any evidence that will be put later to the Respondent and/or any of the Respondent's witnesses. A failure to "put" the other side's case in this way to a witness during cross-examination may prevent the ability of a party to put certain points later on to the other side's witnesses.
After cross-examination, a party may be asked to re-examine its witness, although there is no obligation to do so. Any re-examination must be strictly limited to matters arising out of cross-examination or questions put to a witness by the Tribunal. It is rare for there to be more than one or two points of re-examination.
When the Claimant's evidence has been concluded, this procedure is repeated with the Respondent and the Respondent's witnesses. After giving evidence, the Respondent and each of the Respondent's witnesses can be cross-examined by the Claimant's representative as outlined above.
In every case, both sides will be allowed to sum up by making final submissions.
The judgment
An Employment Tribunal can give its judgment and reasons at the final hearing. However, in complex cases, the Tribunal may exercise its discretion to reserve its judgment and send a written judgment to the parties in due course. If the Employment Tribunal gives its reasons for the judgment orally at the final hearing, no written reasons will be provided. A party may request written reasons if the judgment is given orally. This may be requested at the hearing, or may it may be requested in writing within 14 days.