Employment Tribunals have been operating for approximately 25 years. There are 25 Employment Tribunal Offices in England, Scotland and Wales and there is an Employment Appeal Tribunal based in London.
Each Tribunal that hears a claim consists of 3 members. The person sitting in the middle is the Chairman who is legally qualified and will either be a Barrister or Solicitor with 7 years experience. The two lay members, who are sometimes referred to as Panel Members, are made up so that there is one representative who has experience of the employer side and there is one representative from the Tribunal side.
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The Tribunal Chairman has the duty to advise the lay members on the law however, the lay members can out vote the Tribunal Chairman and very occasionally, they do so.
The vast majority of decisions made at the Employment Tribunal are made unanimously. You can visit an Employment Tribunal prior to your own Hearing as a member of the public and sit in the public section of the Tribunal and listen to a case. I would always recommend if you were unfamiliar with the Tribunal, that you do so, at least take half a day listening to how a case is conducted in Tribunal. You would find that the Clerks are very helpful in letting you know what sort of cases are ongoing that day and will try and direct you to a case similar to yourselves if you indicate that you are already in Tribunal for say an unfair dismissal claim.
It is suggested that the Employment Tribunals are less legalistic and are less concerned with procedure than normal Courts. Please don�t be deceived, they are very much in reality a Court and there is a proper procedure to how people should be addressed and how the case should be conducted.
If you take an artificial case like Billy Brag �v- Silly Sausage Limited. Billy is claiming unfair dismissal. The employers admit dismissing him for gross misconduct on the basis that Billy has been contaminating their sausages and has failed to comply with hygiene regulations. If this was the case being conducted at the Tribunal, on the first day of Hearing, the Tribunal Chairperson would tell the Respondents that they, the employer, should go first and give their evidence first before Billy gives his evidence. Evidence is normally heard by way of the witness reading their Statement and then being asked questions by Billy�s representative or if he is unrepresented, Billy himself before being asked questions again by the panel members and finally after re-examination, each witness is finished. After each witness has given their evidence and been cross-examined on that evidence, then at the conclusion of that evidence, the other side is heard.
If the Chairperson is a lady, she should be addressed as �Maam� and if the Chairperson is a gentleman, he should be addressed as �Sir�. Again, if there is need to address the panel members, depending on their gender as either sir or maam. The Tribunal do not have strict rules in relation to hearsay evidence that is evidence about what someone else heard someone else say. Therefore, evidence that you have in relation to what someone else told you is permitted in an Employment Tribunal.
There are occasions where a Chair can hear cases alone. These are minor cases and also to deal with preliminary matters at Case Management Discussions known as CMD. The purpose of the Case Management Discussion is generally to resolve problems or issues before the full hearing for example to arrange a timetable for documents to be exchanged, Witness Statements to be exchanged and to organise medical evidence. Tribunals have wide powers to control the conduct of cases and give you orders to comply with. If you fail to comply with these Orders, then you risk your claim being struck out for want of prosecution or for breach of the Tribunal Order so if you do receive Orders from the Employment Tribunal having submitted your claim it is important that you comply with those Orders. A lot of Tribunals automatically send out Orders when a claim is received for the organisation of the claim. General Orders will include when documents should be exchanged between the parties, when Witness Statements should be exchanged and whether and what sort of availability there will be for any hearing.
Getting back to our imaginary case, once both sides have been heard and they have given their evidence, then there is an opportunity for both sides to submit their closing arguments, their reasons both legally and factually why the case should be found in their favour.
The Tribunal will then retire to consider their decision and if the decision is in favour of the employee, the claim could continue to go to a Remedy Hearing. A Remedy Hearing is the Hearing to determine what level of compensation the ex-employee should get.
On some occasions because of time or because of the complexity of the case, when the claim has finished and closing arguments have concluded there may not be time, then the Chairman can defer their decision and to give written reasons which would be transmitted to the parties in writing later. This is becoming a more common occurrence.
I just want to talk about this case. Presuming that the claim is successful and he has been unfairly dismissed, then at the Remedy Hearing, the task of the Tribunal is to determine what his basic award is. This would be calculated on the basis of how many years service he has had, what his compensatory award is and that is based on what he has lost to the date of the Hearing and a level of future loss if there is any. The whole purpose behind the Tribunal is to put the person into a position roughly where they haven�t been dismissed so they are no worse of financially.
The Tribunal isn�t there however to reinvestigate the allegation and substitute their own view for that of the employer.
Employment Appeal Tribunals
There is a route of appeal if you are unhappy with the decision at the Employment Tribunal. You can appeal the decision to the Employment Appeal Tribunal but only if you have an argument in law not fact unless the decision is so perverse that no reasonable Tribunal could come to it. In other words, in order to appeal a claim successfully and the Employment Appeal Tribunal you have to show that the Tribunal got the law wrong or they behaved in a bias or perverse manner in that they came to a decision that no reasonable Tribunal would come to.
The Employment Appeal Tribunal is far more formal and you are required to stand when making submissions and you are generally dealing with more senior lay members, frequently Presidents of Unions and senior representatives often referred to as being lady such and such or Lord so and so. The Chair is generally a High Court Judge but not always. There is very much a Court environment as opposed to an Employment Tribunal.
You can only appeal to the Court of Appeal beyond the Employment Appeal Tribunal if you get leave by the Employment Appeal Tribunal to allow you to appeal on the basis that they are wrong in law and it is in the public interest for your claim to proceed sometimes as an interesting area of law that needs a final determination on but those sort of appeals are extremely rare.
I hope this note has been of assistance to explain briefly the Court environment for a Tribunal so that you will feel less intimidated by knowing what each individual role is within the system.
If you are facing redundancy visit our redundancy pages.
If you are being unfairly Dismissed, visit our Unfair Dismissal pages.
If you are being disrciminated against due to race, visit our Race Discrimination pages.
If you are considering going to an Employment Tribunal then see our Employment Tribunal pages
If you are facing Constructive Dismissal, visit our Constructive Dismissal pages.
If you are losing your job due to Misconduct or Gross Misconduct, visit our Misconduct or Gross Misconduct pages.
If you are losing your job due to Capability then visit our Capability pages
If you think you may be suffering from disability discrimination then visit our disability discrimination pages
If you are being asked to sign a Compromise Agreement, then visit our Compromise Agreement pages.
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