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Sunday, 30 October 2011

Your Employment Tribunal hearing

If you have made a claim to an Employment Tribunal then you may go on to have a hearing. Find out what happens at the hearing and after the judgment has been made.

Preparing for your hearing

The Employment Tribunal will let you know the date of your hearing. Before your case is heard it can be useful to watch a hearing so you understand what happens. You can do this by contacting any Employment Tribunal office.

When preparing for the hearing, make sure you have all the documents you plan to use. It usually helps to consider things in date order to provide a sequence of events. If you are going to use any documents to support your case, you need to bring:

  • six copies of every document with you if the case is to be heard by a tribunal of three
  • four copies if the case is being heard by an Employment Judge sitting alone

An Employment Judge may make an order requiring both parties to tell each other on a given date what documents they will be producing. The judge may also order that there is an exchange of documents between parties at some stage before the hearing. You can find out more information by contacting the Employment Tribunals public enquiry line on 08457 959 775.

What happens at the hearing

Tribunals are independent and not part of the government - they make decisions impartially.

At the hearing, you (or your representative) and your employer put your cases to the Employment Tribunal and answer questions. The Employment Tribunal will decide whether your claim succeeds or fails and if it succeeds what should be awarded to you.

You will normally give evidence first, except in unfair dismissal cases where the employer normally goes first. However there is no absolute rule as to which side starts. You and your witnesses will have to give evidence on oath or affirmation. If you lie after swearing an oath or affirmation you could be convicted of perjury.

The respondent (the person you are claiming against) or their representative:

  • can then ask you and/or your witnesses questions – known as cross examination
  • will then give evidence and then may be cross examined by you or your representative

In both cases, the Employment Judge and other members of the tribunal may also ask some questions. Once all the evidence has been heard, the Employment Judge will either announce the judgment and give reasons for it or will tell you that the judgment and reasons will be sent out to you at a later date.

As Tribunal Judges and non-legal or 'lay' members are completely independent and not part of government, they make decisions impartially. Their judgements are based on the law, evidence and arguments put to them.

You can represent yourself at the hearing and the Employment Tribunal will try to make things clear for you.

Legal aid funding and the costs of your case

There is no legal aid funding for Employment Tribunals available in England and Wales and limited legal aid in Scotland.

If you are a member of a trade union, your trade union may pay for a solicitor. Some household insurers will pay reasonable legal costs. Check your policy documents to see if this applies to you.

If your claim is about discrimination, the Equality and Human Rights Commission may be able to provide some support.

Unlike other courts, Employment Tribunals don't usually order either side to pay costs (called “expenses” in Scotland) unless either:

  • they decide you or your employer acted unreasonably in bringing (or in the case of the employer, defending) the case
  • you or your employer or any representatives at the hearing behave unreasonably

In this case the Employment Tribunal can order one party to pay costs of up to £10,000. In exceptional circumstances more can be awarded.

What will happen if you win

The Employment Tribunal can order your employer to pay you compensation. The compensation is unlimited for discrimination or dismissal on health and safety grounds.

For unfair dismissal claims the award is made up of:

  • the basic award, worked out based on your age and length of service and the amount of a week's pay
  • a compensatory award, which includes loss of earnings, up to a set limit reviewed every year (although the maximum is rarely awarded)

On top of these, the Employment Tribunal can make an additional award if it orders your employer to re-employ you but they 'fail unreasonably to do so'. Up to £25,000 can be awarded for wrongful dismissal or other breaches of contract.

Recoupment

If you have claimed Jobseeker's Allowance (JSA) or Income Support (IS) since the event, recoupment may apply to your case.

Recoupment prevents you from being paid twice. It means your employer must deduct some or the entire amount you claimed in JSA or IS from the compensation awarded to you by an Employment Tribunal and repay it to Jobcentre Plus.

This rule applies to a variety of awards. If it does apply, the Employment Tribunal will give you details.

Compensation

Compensation is intended to replace lost earnings. There is no payment for hurt feelings, except in discrimination cases and some Public Interest Disclosure cases. You have to demonstrate to an Employment Tribunal that you tried to reduce your loss, for example by getting another job or claiming benefit.

Employment Tribunals also look at whether you and your employer followed the principles in the Acas Code of Practice on disciplinary and grievance procedures (the Code).

If you have not followed the Code, it does not automatically make you or your employer liable (legally responsible) before an Employment Tribunal. However, an Employment Tribunal can adjust your compensation award by up to 25 per cent if they consider that there was 'unreasonable behaviour' by yourself or the respondent.

You can read more about the Acas Code of Practice, and the Acas guide 'Discipline and grievances at work' by following the link below.

What will happen if you lose

You can only ask the Employment Tribunal to review its judgment in very limited circumstances.

There are strict time limits in which you can do this.

You can also consider asking the Employment Appeal Tribunal (EAT) for an appeal on the basis that the Employment Tribunal made a mistake in the way it applied the law.

What happens if you don't turn up

Normally you would be expected to attend the hearing and give evidence about your case. It is possible for the Employment Tribunal to decide the case in your absence. However, if you do not attend this will place you at a serious disadvantage. The Employment Tribunal will not be able to hear all the evidence that may be relevant to your case.

If for any reason you decide not to attend, you must tell the Employment Tribunal that you want the case to be heard in your absence.

Tribunals in Northern Ireland

If you live in Northern Ireland and have an employment dispute, you will need to contact the Office of the Industrial Tribunals and the Fair Employment Tribunal (OITFET).

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