11. THE HEARING

Although the employer will normally be responsible for creating the bundle of relevant documents, you will still need to bring some documents to hand out. Specifically, on the day of the hearing, you will need to take up to six copies of all the documents you have created for the hearing (e.g. witness statements). These will then be presented to the tribunal — one copy for each of up to three tribunal members, one for the claimant, one for the employer and one to be available at the witness’s table. Claimants and employers are addressed by each other in the tribunal process as the “other side”.

A clerk will collect the papers for the tribunal and the other side, and will give you the employer’s documents. As parties are unlikely to have anticipated all the other side’s arguments and evidence, skeleton arguments are often not exchanged until the morning of the last day of the hearing when the parties make their closing submissions.

A clerk will also tell you when it is time to go to the courtroom and in which courtroom the hearing will take place. Seeing the other side (especially if it’s for the first time in some months) can be nerve-wracking. To avoid misunderstandings, unless there is the prospect of a last-minute settlement, anything other than brief cordial comments should be avoided.

Don’t be intimidated by the fact that the number of people turning up on behalf of the employer is larger than the number of people attending on your behalf. This is invariably the case and is not necessarily to the employer’s advantage. Specifically, the more witnesses the employer calls, the more scope there is to point out inconsistencies in their evidence.

If the other side behaves in an abusive manner or in a manner designed to intimidate, this should be brought to the attention of the tribunal. In certain circumstances, such conduct can lead to the antagonist being excluded from participating in the hearing (Force One Utilities Ltd v Hatfield UKEAT/0048/08/DA).

In the tribunal you will be expected to nod your acknowledgement of the tribunal judge/panel and to take a seat (representative and claimant sitting side by side). Settle at the desk and have blank paper and a number of pens ready to take notes — keeping an accurate record of what is said will be important when it comes to summing up.

The format of the hearing is:

A very brief discussion of what the case is about and any administrative matters. This is especially so if no list of issues has been prepared or there are any matters not already resolved by directions or an earlier tribunal ruling.

Evidence is presented (and challenged).

Where the claimants must prove their case (e.g. that discrimination occurred), the claimant calls their witnesses first. Correspondingly, where the respondent must prove their case (i.e. that the dismissal was fair) its witnesses will give evidence first.

First, the witness will swear an oath. In England and Wales as of 6 April 2012 witness statements are no longer automatically read out in employment tribunals, though tribunals can direct otherwise. Instead it will be assumed that witness statements have been read by the parties and tribunal. As such, the statements are taken "as read".

Once the witness’s evidence has been given in support of the party which called the witness, the representative for the other side will ask questions in response (cross-examination). These questions must put every aspect of that side’s case to the witness (at least in so far as that witness can comment on those points).

The total length of the hearing will normally have been estimated in advance. However, under a proposal in Lord Justice Underhill’s review of tribunal procedures, tribunal judges would have the power to set time limits for different parts of a hearing too. Specifically, under draft rule 50 of the proposed new rules, a tribunal would have the express power to set timetables for presenting evidence, questioning witnesses and making submission.

The idea is to prevent over-lengthy oral evidence and submissions through the use of a time guillotine — that is a cut-off irrespective of whether the evidence-giving is finished or not.

The objective of cross-examination is to show that the witness is unreliable (for example, cannot accurately remember events) and/or that the witness lacks credibility (for example, is deliberately misleading the tribunal). An accusation that a witness is lying is a very serious one and should only be put if it can be proved.

A successful cross-examination will show, one question at a time, the contradictions within a witness’s evidence and/or the illogicality of their assertions. This is often achieved by putting propositions to a witness that s/he can’t deny, then moving to propositions that due to his/her earlier admission s/he also can’t deny and so on — building a type of logic pyramid.

Witnesses on behalf of your case should be advised to address their answers to the judge/panel. After all it is the judge/panel that will decide the case and needs to be able to hear and assess the responses given. A way of making this feel less artificial for the witness is to advise them to point their feet towards the judge/panel. This has the effect of naturally refocusing the attention of the witness, irrespective of which direction the questions come from.

In addition to the representatives, the tribunal may also ask questions. It is important to take a note of questions asked and answers given generally, but especially so in relation to questions asked by the tribunal panel. Their interventions may illuminate a misunderstanding that they have, or show how they feel about a particular point. Their questions will highlight areas in which further explanation is needed — or areas which the tribunal thinks are significant and are worth emphasising in closing submissions.

Once all witnesses for the side going first have been called, it is the other side’s turn to call their witnesses. Once the last witness has been called, the presentation of evidence phase is over. There will normally be an adjournment before a final discussion of the case.

Summing up of evidence heard and its significance together with discussion of the law

This is an opportunity to run through key aspects of the skeleton argument. It is also the time to remind the tribunal of the evidence that they have heard that supports the claimant’s case. Remember that the tribunal may be comprised of as many as three members. While it may be the case that the judge is the most influential person on the panel, s/he is not the only person to whom to address remarks.

There will then be a break for the tribunal to deliberate followed by oral judgment (written reasons can be requested) or written judgment sent by post.

In his 2012 review of tribunal procedures, Lord Justice Underhill recommended changes to the operation of written reasons (the explanation for why a judge has reached a decision). Written reasons can be requested in relation to any decision, not just the final judgment. However, while this service would continue to be free (contrary to the government’s initial suggestion), judges would have the option where appropriate (under draft rule 58) to keep written reasons very short.

Often the hearing of a case will not be concluded within the allotted time. This means that it will be adjourned part-heard and you will have to come back (normally several weeks later). If this does happen, soon after the end of the first part of the hearing, it is advisable to review your handwritten notes and prepare for the concluding part. If you wait to do this until just before the resumed hearing, fading memories of where you got up to and what precisely was said, may hamper your preparations.