Preparing for the hearing 

 

Preparation for the hearing is key. There are pre-hearing reviews to consider, clients and witnesses to prepare and documents to be checked.

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Pre-hearing reviews

Following the lodging of the ET1 and ET3, you may be notified by the ET that a pre-hearing review will take place prior to the full hearing. This is an interim hearing to determine preliminary matters.

There are two main situations in which this procedure is used:

  • if a party, or the Employment Tribunal, considers that a claim or response cannot be brought, or should be struck out in full or in part; or
  • to determine another preliminary matter such as issuing directions, an application for interim relief or that a deposit be paid into court

Applications to determine claims or responses

The Chairman of the Employment Tribunal has power to make a judgment or order which may determine the entitlement of any party to bring or contest a claim, or to strike out an application. A claim or response may be struck out where:

  • the claim/response is scandalous, vexatious or has no reasonable prospect of success; or
  • the conduct of the case by one of the parties or their representative is scandalous, vexatious or unreasonable; or
  • a claim has not been actively pursued; or
  • one fot he parties has not complied with an order or practice direction; or where it is no longer possible to have a fair hearing

If a pre-hearing review is going to take place, you will receive notice of this in advance from the ET. Pre-hearing reviews will normally conducted in public by a chairman sitting alone unless:

  • a party has requested at least 10 days in advance that the hearing be conducted by a tribunal;
  • the chairman considers that one or more substantive issues of fact are likely to be determined; and
  • it is desirable.

If the preliminary point is upheld, it has the effect of disposing of the whole of the claimant’s case or at least part of the claimant’s case. Therefore you should be prepared to argue the point in the claimant’s favour. Oral and written evidence may be needed, however if the relevant facts are not disputed then each party will offer short submissions and the ET will make a decision.

If the application is dismissed, the case will continue to a full hearing.

Other preliminary matters

The pre-hearing review may also be used to determine any other preliminary matter such as issuing directions relating to case management, considering any oral or written representations or evidence and making an order requiring a party to pay a deposit.

The ET may decide that the case has little reasonable prospect of success and order the claimant to pay a deposit of up to £500 in order to be allowed to continue proceedings. The exact sum will depend on the claimant’s financial situation therefore you should ensure that you have details of the claimant’s wages/salary, and/or any benefits that they receive prior to the hearing. In some circumstances your organisation may fund the deposit and you should inform the claimant as soon as possible if this is the case. If the claimant chooses not to pay the deposit, the ET is entitled to have the case struck out.

If the claimant’s case is unsuccessful at the full hearing, the tribunal will consider whether or not to make a costs or preparation time order against the claimant and having an award of expenses made against them. If a costs or preparation time order is in fact made against the claimant, the deposit will be used in part or full settlement of that order. If no costs order is  made against the claimant the deposit will be refunded in full. If the claimant’s case is successful at the full hearing or the claimant withdraws the case, the deposit will also be refunded in full.


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Preparing the client and witnesses

Final preparation of the case must include preparing both the claimant and their witnesses for the hearing.

Oral evidence will often be a vital part of the evidence before the ET. You should make sure that the claimant and witnesses are comfortable and confident speaking before the ET.

You should speak to the client and witnesses to allay any fears they have about the proceedings and in particular the following issues.


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Checklist for your client

  1. Time and date of the hearing – advise the claimant and witnesses to arrive 30 minutes before the start of the hearing. When they arrive at the ET Office they should report to reception, where the ET staff will note that they are present for the hearing. Make sure that they have the ET Office’s telephone number and ask them to contact the Office if for any reason they are going to be late on the morning of the hearing.
  2. Directions to the Employment Tribunal Office – the ET issue maps and it may be a good idea to send a map to the witness(es).
  3. Explain to the claimant and witnesses that there is a possibility that they will be at the ET Office for a long time, possibly over a number of days. This is more likely in race discrimination cases, which often take a number of days to conclude.
  4. Inform the witnesses that they will not be present throughout the hearing of other evidence at the hearing. Explain that they should not leave the ET Office at this time.
  5. The claimant may be very nervous about appearing before the ET and if this is the case you may wish to inform him/her that they are free to ask a relative or friend to accompany them if they feel it is necessary. The ET is a public place and any member of the public is permitted to view the proceedings.
  6. Often the claimant will be unsure or nervous about the perceived formalities of the ET and you should assure him/her that it is more informal than they expect. One issue that may be worth discussing is the layout of the room where the hearing will take place. Explain that the ET is not a typical ‘courtroom’ set-up and that the claimant, respondent and their representatives will sit adjacent to each other at a table. The table faces a raised table where the members of the ET sit.
  7. The claimant and witnesses will be positioned at the witness table in order to take the oath and give evidence. They will be asked to stand whilst taking the oath but remain seated when giving evidence. Inform the claimant and witnesses that it is a criminal offence to lie on oath.
  8. Explain to the claimant and witnesses that within the ET room there will be the claimant, respondent and their representatives, the Chairman of the ET and two members of the ET. The Clerk of the ET will be present when the claimant confirms their details but usually does not remain in the room for the entire hearing as the Chairman takes the substantive notes on the case.
  9. The claimant and witnesses must be asked whether or not they are happy taking the oath before they give evidence. If they require a particular holy book, you should contact the ET immediately and make arrangements accordingly.
  10. Although the ET hearing is designed to be an informal process, there are a small number of formalities of which the claimant and witnesses should be made aware. For example, all persons present are expected to rise to standing when the ET members enter and leave the room; the Chairman should be addressed as ‘Mr/Madam Chairman’ and the lay members of the ET should be addressed as ‘Sir/Madam’. Other than that, only the basic rules of courtesy apply.
  11. The claimant and witnesses should be informed that the role of chairman is an inquisitorial one and he or she will ask a number of questions of the claimant and witnesses. You should explain that this is the Chairman’s role in the proceedings and their questioning does not necessarily mean that they do not believe the evidence they are hearing. Questions will clarify the points for the Chairman and allow him or her to complete their notes on the case.
  12. Advise the client and witnesses to remain as calm, courteous and as consistent as possible throughout the proceedings. On cross-examination there is a tendency amongst claimants and witnesses to become upset or angry at the questioning by and perceived attitude of the respondent’s representative. They should be aware that the representative is attempting to do the best for their client and by becoming irate or upset the claimant or witness may be assisting the respondent in proving a point vital to his/her case. Angry outbursts do little for the credibility or perception of the claimant and witnesses and you should let them know they are to be avoided at all costs.
  13. For a claimant who is particularly nervous or upset during the hearing, it may be possible to ask the ET for a ‘comfort break.’ This would adjourn the case for a short time (typically 10 minutes) and would allow the claimant some time away from the very stressful and upsetting environment of the ET. Let the client know that this option is available if they need it, and that you will be there for support at that time.
  14. Ensure that you speak with the claimant and witnesses about reclaiming any expenses occurred by attending the ET hearing. Advise them to keep any receipts, such as for travelling expenses and hotel bills, and to ask their employer for evidence of any lost wages. The necessary forms for reclaiming expenses can be found in the ET Office. The amount that a claimant or witness can claim back as legitimate expenses is capped and you should contact the ET Office for more information.


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Preparing the documents bundle

At this stage, you will have decided which documents are important for the claimant’s case and should now prepare your documents bundle for the hearing.

The documents bundle is basically a collection of all of the important documents for the case, which should be sent to all parties to the hearing.

You should include any important documents received from the respondent, claimant or third parties which may reinforce a legal principle, prove facts in the case or show that the claimant has been seeking other employment, has claimed benefits or earns a certain wages at present.

If possible, attempt to agree to a joint bundle with the respondent.

If this is agreed, the respondent’s representative will often compile the joint bundle as the respondent often holds a number of the original documents that will be included. Agreeing to provide the ET with a joint bundle can often mean that some evidence can be agreed in advance of the hearing and avoids unnecessary duplication of documents.

If a joint bundle cannot be agreed, you should prepare the claimant’s bundle. The documents should be presented in chronological order and numbered, with each number being prefixed with the letter ‘A’ (representing that the bundle belongs to the claimant), for example, A1, A2, and so on.

You should provide an index at the front of the bundle in order that the ET members, the respondent and any witnesses (if they are required to consider or provide an explanation of any documents during the hearing) can easily navigate their way around.

Make six copies of the bundle; one each for:

  • the claimant
  • the respondent
  • the chairman
  • first lay member
  • second lay member
  • the witness table

You should send the bundle at least one week in advance of the hearing. You must give both the respondent and the ET advance notice of the productions that you are bringing before the ET, in order that they view them and can consider their worth. If the bundle is sent later than this you risk adjournment of the case or a delay in proceedings, which will not be in the claimant’s favour.


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