By and large, HR professionals are a peaceable bunch and therefore never relish the thought of going to employment tribunal. Indeed, a surprisingly large proportion of HR professionals I speak to seem to have avoided it altogether. Consequently, when there appears to be little choice but to visit the tribunal, there are always a number of questions about exactly what they are like in practice and how one should best prepare for them.
Although rather less formal than the courts, employment tribunals are technically a court. They are masters of their own procedure, subject to The Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993. They have a duty to proceed fairly but also a duty to seek to avoid formality in its proceedings. The idea is that tribunals will be able to dispense justice in a setting which will not alienate or intimidate unrepresented individual applicants.
As the name suggests, tribunals usually comprise three individuals. The chairman is obliged to have at least seven years’ experience as a barrister or solicitor and is technically appointed by the Lord Chancellor. The other members – usually called “wing members” – are nominated by panels drawn from each side of industry, of which the CBI and the TUC are the most prominent.
They are not supposed, however, to betray their bias towards their respective sides of industry but are instead expected to bring practical expertise and experience of the workplace to bear. You should always be aware that the wing members are perfectly entitled to out-vote the legally qualified chairman and sometimes do.
This, of course, depends on the type of claim brought. Usually the party bearing the onus of proof is asked to lead evidence first, with the other party following on behind. Each witness gives their evidence and can then be cross-examined by the other side. The tribunal can also ask questions.
After both parties have brought their evidence, they are invited to make final submissions, drawing together the relevant factual and legal issues. The tribunal usually then retires to make its decision, which can be straightaway or, in complex cases, later in writing.
How to behave at tribunal hearings
This is what I am usually asked in the tense few days before the tribunal hearing occurs. The atmosphere is formal but there are no gowns or wigs. One should address the chairman as “Sir” or “Madam”, depending of course on their sex.
One useful tip is that the chairman is under a duty to take a full note of the proceedings and will therefore be making a longhand record of everything said. Witnesses and representatives are therefore advised to speak fairly slowly and clearly, with witnesses addressing their answers to the chairman not to the questioner.
Tribunals rarely commence proceedings before 10.30am, will usually take at least an hour for lunch, and rarely sit beyond 4pm. A full tribunal day is therefore rather less than five hours and, given that the evidence is usually taken fairly slowly for the reasons above, all but the most simple cases might require a listing of two days or more. It is usually disadvantageous for a case for go “part-heard” since the case cannot usually be continued the following day.