How to prepare for your Employment Tribunal hearing: Tom's authoritative guide

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How to prepare for an Employment Tribunal hearing: Tom’s authoritative guide

Last updated: 8th December 2021

prepare for an employment tribunal hearing

The days before your Employment Tribunal hearing can be quite stressful, so it’s important to understand what preparations you need to make and what to expect.

This practical guide aims to reduce the stress of attending your tribunal hearing by ensuring you are prepared as much as possible. It will provide essential knowledge of what to expect, pitfalls to avoid and the process of judgement.

It is highly likely that settlement discussions will be taking place at this time, so you need to be fully prepared for your hearing should settlement not be achieved.

What is an Employment Tribunal hearing like?

The tribunal is like a mini courtroom, though most typically your hearing will likely be held in an office building rather than a law court.

The claimant (you) sits on one side of the room alongside your legal representative (if you have appointed one). Your employer (the respondent) will be seated on the other side of the room, normally with theirs.

Both sides will sit facing a single Employment Tribunal judge (in the simplest of cases) or a tribunal judge with 2 lay members. Normally one of these will come from an employee centric organisation (i.e a trade union) and the other from an employer centric organisation (i.e a former company director).

There used to be 3 judges for unfair dismissal and constructive dismissal claims but in 2012 the law was changed so that the tribunal service could save money. Now these types of cases are only heard by a single Employment Tribunal judge.

They are normally a former lawyer specialising in employment law, who will know the law back to front and are therefore able to rule on dismissal claims without the need of 2 lay members to assist them in reaching their decision.

Three judges are however still required to hear more complex cases, such as those concerning:

  • Discrimination
  • Whistleblowing detriment
  • Injury to feeling

What happens during proceedings?

During your Employment Tribunal hearing proceedings, both parties will be given the opportunity of presenting their evidence.

PLEASE NOTE: As set out in my guide ‘How to draft a Witness Statement‘ the parties evidence is now “taken as read”. In other words, the judges read your witness statements and documents referred to within them. The person making those witness statements is not allowed to add any further information, or embellish what has already been submitted.

Stepping into the witness box

After the individual giving evidence has taken the stand (stepped into the witness box), their opponent is then given the opportunity to ask them questions.

This process is known as the cross-examination phase of your Employment Tribunal hearing.

Witnesses on both sides should therefore be fully prepared to answer questions (and be grilled on their evidence!) by the opposing side and judge and/or panel.

Essential To Know

Ultimately, the job of the tribunal judge/judging panel is to get to the truth of the case.

As such, if they need to ask pointed questions in order to understand either parties evidence more clearly, they will not hesitate to do so.

Be prepared for cross-examination

You or your witnesses may find yourselves questioned in a calm manner and logical way.

But, the other side’s solicitor may try to use their cross-examination skills to get you to admit to certain things. As such, this can be a stressful process but the aim of the process is simply to get to the truth.

Tom’s Tip

If you are preparing to represent yourself at the Employment Tribunal hearing, not only will you be expected to answer questions, you will also be expected to have prepared questions for your opponent.

It is therefore very important to do your homework and work out what you need to prove in order to win your case.

Work out what information you need to extract from the other side to achieve this.

Then, as best you can, design your cross-examination questions accordingly.

Specialist solicitors and barristers are, of course, very good at working out what information they need the tribunal to hear. As a result, they will be highly effective in asking questions of witnesses that will extract this information.

Essential To Know

Facing cross-examination from your opponent’s legal representative at your Employment Tribunal hearing can be quite stressful.

For example, they may demand that you only give ‘yes’ or ‘no’ answers and ask you a series of pointed questions from which you really have no choice but to do so.

This is a tool which a legal representative is entitled to use. However, when being questioned in this manner you should do your best to give the evidence you wish to give but at the same time answering the questions that are posed to you.

PLEASE NOTE: If you are difficult and refuse to answer questions in the witness box, this will inevitably damage your credibility as a witness. You must be seen to be a credible and truthful witness.

Tom’s Tip

Try to avoid what I call “head in your hands” moments when presented with irrefutable documents.

For example, you refuse to recognise the documents as truthful, or you claim never to have seen them before.

During cross-examination you should also avoid contradicting your own previous evidence, or the contents of your ET1 Claim Form. If you are found to be an incredible witness who cannot stick to one version of events, your credibility will be damaged and in all likelihood you would lose your case.

You should therefore make sure that the witness statement you have given in evidence is consistent with the contents of your original claim form. You must also be familiar with all documents within the bundle, even if they don’t fully support your pleaded case.

Alongside this preparation, you should also be ready to give an explanation for inconvenient documents contained within the bundle.

What else should I do in preparation?

Another thing that you may wish to do in advance of the Employment Tribunal hearing is to put together a document called a ‘Skeleton Argument’.

This is a brief 2-3 side A4 page (double spaced) whereby you set out, very concisely, the various claims that you are making, summarising your arguments in support of each.

If you have carried out some research, you may be aware of some leading case law which may help you win your case. If you want to impress the judge, you should bring a reasonable number of copies of the supporting case law with you, so these may be given to the judge and your opponent alongside your skeleton argument.

This will also be a useful document to refer to when summarising the case once all the evidence has finished – the summing up process.

The summing up process

The summing up process comes once all witnesses have given evidence. It allows you (or your legal representative) to summarise the arguments raised in evidence given by both parties.

It aims to seek to persuade the judge, via legal arguments and a summary of the facts, that they should rule in your favour.

Before your Employment Tribunal hearing you should probably think about what sort of arguments and submissions you are likely to want to make when summing up your case.

Your Employment Tribunal judgement

Finally, once the summing up process has taken place, the judge/judging panel will either give their decision on the final day of your hearing (if there is time) or give what’s known as a ‘reserved judgement’.

A reserved judgement is where everyone is asked to go home and the judge/judging panel then meets again to think about the outcome, before sending the outcome decision to the parties in the post, or calling them back in to give judgement.

If you win your hearing

If you are successful in your claim, the judge/judging panel will (if there is time) hear further submissions on the issue of quantum.

What is quantum?

The issue of quantum relates to how much your successful claim is worth.

Once both parties have given their opinion as to the value of your claim, the judge will then hopefully giving a ruling in your favour.

If you are advancing an unfair dismissal claim, you can use our Compensation Calculator to work out how much compensation you might receive.

Can we assist you with your claim?

Our highly skilled employment solicitors have helped clients across the UK achieve successful tribunal outcomes and compensatory awards.

If you have a strong and viable case we will consider representing your Employment Tribunal claim under our no win no fee policy.

Alternatively, we have a range of fixed fee solutions to cover all aspects of preparing for tribunal if you would prefer to represent yourself with assistance in certain areas.

If you would like a preliminary assessment of the viability of your claim, you can speak with one of our knowledgeable team today. Simply call 020 3923 4777 or submit your enquiry via our 24/7 online enquiry form and we will get back to you within 48 hours via phone, email or text.