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What happens at a tribunal hearing?
Most tribunal hearings are held in large rooms, rather than formal court rooms. The judge (or the panel) will sit at the front, with the parties to the case and their representatives sitting opposite on the front row of chairs with others behind. Tribunal hearings are open to the public, unless a specific request is made to the tribunal for a closed hearing and the tribunal agrees to this. This is normally only done in cases of great sensitivity, for example, involving sexual harassment, or where there are implications for national security.
In England and Wales, both parties will make an opening statement presenting their case. In Scotland, there is not normally an opening statement. Whether the employer or the employee's representative goes first depends on the nature of the case. The main consideration is where the burden of proof lies. In some cases, the onus is on you to show that your employer acted unlawfully (for example, where you believe that you were constructively dismissed). In others, it is up to the employer to show they acted lawfully. For example, if you have been dismissed while you are pregnant, it is entirely up to the employer to show it had good reason to sack you. That is to say, the tribunal will assume you were dismissed unfairly unless your employer can prove that it sacked you fairly.
After the opening statements, the tribunal will invite the parties to call their witnesses to give their evidence (witness statements are no longer read out by a witness). Each side will be able to ask questions of the witness for the other side, in a process known as cross-examination.
In most tribunal claims, the claimant is the only person giving evidence in their claim, while the employer is likely to call as witnesses the employees involved in the decision-making process or incidents under review, such as the line manager, or someone from HR.
Where the claimant is not represented, they will have to question the employer's witnesses themselves. The tribunal will also ask its own questions. It's very important to make sure that your witness statement is true and as accurate as you can make it. You will be questioned closely on its contents by the employer's representative.
As well as asking questions of the witnesses, the tribunal will scrutinise the documentation, and finally call for closing statements from both parties, which should summarise the significance of the evidence heard and reference the legal authorities (cases) relied upon.
Tribunal judges are increasingly strict in making sure that witnesses do not go beyond their allotted time, including sometimes shortening cross-examination if it is going on for too long or focusing on irrelevant issues.
At any time during the hearing, the tribunal can adjourn – e.g. if time runs out, or if either party wants to consider a settlement out of court. It can also stop proceedings if the employer decides to concede the case, or if the tribunal decides that one party or the other is the clear winner, and nothing would be gained by continuing the hearing. The panel decides whether you have won the case and, if so, goes on to consider what compensation or other award you should receive.
Where a full three person tribunal is used (for example, in discrimination cases), each member of the panel has an equal say, so it is possible for the lay members to outvote the Chair. However, panels generally try to reach a consensus. A judge sits alone to hear many cases, including claims for unpaid wages, holiday, redundancy pay, interim relief and unfair dismissal.
For straightforward cases, the decision will be given orally that day, with written confirmation and fuller reasons communicated in writing a few days later. However, for more complex cases, a tribunal will delay making a decision, known as 'reserving judgement'.
If judgement is 'reserved', the tribunal must put its reasons in writing. If the tribunal gives reasons orally that day, you can ask the tribunal to provide written reasons as well. You must make this request either at the end of the hearing or in writing within 14 days. It is always sensible to ask for written reasons, especially if you think you might appeal.