How to prepare for a tribunal hearing

There is no dress code. It is a good idea to wear what you would wear to a job interview.

Employment Tribunals are quite like an office setting, and not like the old, dark criminal court rooms you might see on television. (See further below for our advice on “remote hearings”).

There will be a reception where you sign in, and you will be sent to a waiting room to wait for the hearing to start. There are usually separate waiting rooms for the Claimant and Respondent.

There is usually a Tribunal clerk who talks to both “sides” in the lead up to the hearing, and on the day, collecting and sharing any paperwork.

People don’t stand to speak in the Employment Tribunal, unlike in the Criminal Courts.  The lawyers and judges will be dressed normally in suits or smart clothing. There will be no wigs or gowns.

How the Tribunal room will be laid out:

• The person who brings the claim (the Claimant) will normally sit on the judge’s left, the Respondent on the judge’s right.
• If the parties are represented, the representatives will sit with their clients.
• There will be a witness table, which will have unmarked copies of the documents and all the witness statements (“bundle”).
• In some cases there will be one Employment Judge sitting alone to make the decision in the case.
• In more complex cases there will be 3 people sitting in the Employment Tribunal to make the decision – an Employment Judge siting in the middle, with two “lay judges”, one on either side.

You call the judge ‘Sir’ or ‘Madam’. 

It is a good idea to go and watch a case, or part of a case, if you can, partly to get a sense of what the Tribunal building can feel like, and partly to get a feel for how the hearing works, and they way that issues are likely to be discussed.

Normally anyone can go and watch a tribunal hearing, as hearings are intended to be open to the public, unless the Tribunal has ordered otherwise. (Some hearings may be ordered to have no public or press present for a particular reason, such as where very sensitive personal issues are being discussed in the case). 

However, since Covid, there are some restrictions on who can attend the Tribunal, and there is a backlog of cases, making it challenging for Tribunal staff. For this reason, some hearings won’t be accessible to the public. 

It is best to contact a Tribunal near you and ask if you can attend a case in advance, so that you won’t have a wasted trip.

Here is a list of all the Employment Tribunals in the UK and their contact details.

Employment Tribunal claims can take a long time, from start to finish. Some cases are taking well over a year to get to a full (i.e. final) hearing.

The length of time will depend on a number of things, such as where you are in the country, i.e. how busy your local Tribunal is; what sort of case you are bringing, i.e. how complex your case is, and how many witnesses each “side” needs to bring; and how many preliminary issues there might be to address, before the full hearing can be scheduled.

Broadly speaking, there are three stages of Tribunal hearing, excluding any appeal:

• Preliminary Hearing/Case Management Hearing

These type of hearings are at the initial stages of a claim, and they will address issues which need to be sorted out before the full hearing can be arranged.

• Full Hearing

This is also sometimes called the “full merits hearing”, “substantive hearing” or “final hearing”, and it is the time when evidence will be heard from both sides, there will be cross-examination, and the claim will be decided.

The full hearing might be only one day in a relatively simple case, or could be a week or more in a complex case.

The Tribunal will sometimes deal with the remedy (i.e. the compensation to be awarded to the Claimant, if they are successful) at the end of a full hearing. However, it is more common that a separate hearing will be arranged to discuss compensation after the end of the full hearing, particularly where the calculation of compensation is in dispute or is complex.

• Remedy Hearing

This is the final stage of a claim, if the Claimant has been successful in one or more of their claims.

The Employment Tribunal was set up so that Claimants and Respondents can choose to represent themselves. The Employment Judge and staff at the Tribunal should be trained in supporting “litigants in person”, i.e. Claimants who wish to represent themselves.

However, the amount of preparation and complexity that can arise in an Employment Tribunal claim, particularly a discrimination claim, can be very challenging, and if you can find support or if you can afford a legal representative, this can be a good investment.

If you can find a legal representative, make sure they are an employment law expert, rather than from another field of law.

More in-depth information is provided on the Employment Tribunal process in our step-by-step guide below.

Most Employment Tribunal claims are won or lost in the preparation.

Do search our detailed advice pages on the types of claim you might need to bring if your rights in relation to childcare or caring commitments are breached. It is crucial that you know what the legal test is for the type of case you are bringing in the Employment Tribunal, and this can be a complicated issue.

You will need evidence for the claims you bring, and you will need to think at an early stage about the dates and details around each allegation that you make, and what evidence you can show to convince the Tribunal about your case. Evidence can include: documents, emails, text messages, WhatsApp messages or notes; diary or calendar entries; photographs; videos… the list is endless, but any evidence you want to include in your case must be relevant.

It is important to make sure you have the correct paperwork ready for each Employment Tribunal hearing, and that you bring it with you. Keep all letters that you receive from the Respondent and from the Tribunal, in date order, and note anything you are asked to do to prepare for the full hearing.

Relevant paperwork may include;

• Anything you have written down about what’s happened, e.g. diary entries, emails, notes or messages about what was said
• Your employment contract, if you have one
• Any medical notes relating to your case, for example confirming the a disability or confirming the effect of your employer’s treatment of you on your health
• Any payslips or salary information (from your previous job and any new employment)
• Any emails, letters or texts from your employer, or other employees, about the situation
• Your witness statement
• An up to date Schedule of Loss, evidence of job applications you have made, and evidence in support of the amount of compensation you are claiming
• Anything else which you feel is relevant to help the Tribunal make a decision on the issues in your case.

You are likely to be asked to agree with the Respondent on the contents of a “bundle”, i.e. a folder, of documents for your case. It is best to arrange your documents in date order before the first hearing in your case, so that you can find what you need quickly. Be prepared to tell the Tribunal which documents you need to put in the bundle and why they are relevant.

Make sure to note down all relevant dates in the management of your case, including when to send off your paperwork and each Tribunal hearing date.

See our separate advice page on the importance of preparing a “Schedule of Loss” early in your case, and what this contains.

You may be asked by the Respondent for “Further and Better Particulars” of your claim, or you may want to request Further and Better Particulars of the Respondent’s Defence. This simply means where one side asks for more details on the other side’s claim form (ET1) or defence (ET3).

Please note that you are likely to be asked to help the Tribunal formulate a “List of Issues” in your case. Identifying a List of Issues helps the parties narrow down which questions the Tribunal needs to ask and answer to reach a decision in the case. 

The rules on how cases are managed in the Employment Tribunal, from how to start a claim, to what happens at a hearing, and the decisions that can be made on very important issues such as striking out a claim, are contained in the Employment Tribunals (Rules of Procedure) 2013.

It is important that you try to familiarise yourself with these rules, as they will be referred to at numerous points during your case.

You can ask the Employment Tribunal judge to explain anything you don’t understand.

As a result of the coronavirus pandemic and the government guidelines for social distancing, Employment Tribunals are still holding many hearings remotely via video conference. These “remote hearings” have proved to increase efficiency and reduce paper waste, meaning that it is likely that they will be continued to be used going forward.

The Tribunal will decide whether the hearing will be conducted remotely.

However, you should inform the Tribunal as soon as possible if there are any specific circumstances which mean that certain methods are more suitable for you. You can fill in the appropriate box on the ET1 form, but you may also need to make these points again later in the process. For example, if you do not have the IT equipment that you would need for a remote hearing; if your home does not have stable internet; if you don’t have a quiet room where you can be uninterrupted for the duration of a hearing, you should make this clear to the Tribunal.

On the other hand, if you will have difficulties in attending an in-person hearing, make this clear to the Tribunal well in advance.

There may be additional factors that you will need to consider for remote hearings:

• IT Equipment: You must ensure that you have suitable and working audio and video capabilities to ensure that there are no disruptions and/or issues during the hearing.
• You should make sure that you have a stable internet connection in advance of the hearing –  the Tribunal uses a system called Cloud Video Platform which works best using Google Chrome.
• It can be very challenging to manage giving evidence and looking at the case documents at the same time. You may need to consider using a second screen if you need to view the video-link and the electronic bundle at the same time.
• You should check that you have the correct login details and the date and time of the hearing. Log in early to make sure you’re ready for the start of the hearing.
• Formal setting: You will need to ensure that you are seated in a quiet room with good lighting and no noise or other distractions during the hearing. Formality and professionalism is still expected in a virtual tribunal environment.
• Electronic document filings: You should ensure that you understand and can use the online platform used for submitting documents and electronic bundles to the tribunal.
• The Government have also produced various informative documents on remote hearings: you can see a useful guidance note here.

There will be lots of important dates and deadlines in any Tribunal claim, so that the claim is kept on track and keeps moving forward.

It is important to make sure that you notice any deadlines in any letters sent to you by the Tribunal, and that you meet these deadlines. This includes when you must share your paperwork with the Respondent or their representative.

If you don’t meet a deadline, part or all of your case may be “struck out” in some circumstances.

Diarise any dates of hearings as soon as you receive them, and make a note of whether the hearing is “virtual” or in person.

If you are unable to attend or meet a deadline for any reason, make sure you have told the Tribunal in advance, preferably in writing, and provide your reason.

You should inform the Employment Tribunal well in advance of each hearing about any needs you have in terms of language or other accessibility issues. You can do this by telephoning the Tribunal clerk, although it is often best to do this in writing via email.

This also applies to anyone you may wish to bring with you, and to your witnesses.

• For example, you may speak English as a second language, so you may need an interpreter.
• You may have a disability or injury.
• You may like to ask for sign language support, more frequent breaks, support with reading or assistance in moving around the Tribunal building.
• You should also let the Tribunal know in advance if you are pregnant or breastfeeding.

The contact information for the Tribunal clerk should be provided to you on each letter you receive from the Tribunal.

Most Tribunal hearings start at 10am in the morning, or 2pm in the afternoon. Being early is important, and it is very unhelpful to be late.

If your hearing is in-person, when you arrive make sure to sign in at reception and let the clerk know you are there. There are separate waiting rooms for claimants and respondents.

There is often a lot going on before the hearing starts. You will likely see each side’s representatives popping in and out to hand over papers, or to negotiate an agreement. If you are representing yourself then if it likely the employer’s representative will want to talk to you before the hearing starts.

The clerk will call you into the court room when the Tribunal Judge is ready to start.

These type of hearings are at the initial stages of a claim, and they will address issues which need to be sorted out before the full hearing can be arranged.

For example, the Tribunal and the parties (Claimant and Respondent) will need to discuss how long the full hearing needs to be, so that it can be put into the Tribunal diary. This will depend on how complex the issues are, how many witnesses are required, whether any expert witnesses are required, and how long it will take each witness, including the Claimant, to give their evidence.

Sometimes a hearing is required so that the Tribunal can consider whether some aspects of a Claimant’s case are allowed to proceed at all. If not, they may be “struck out” before the full hearing. 

A Preliminary Hearing may also be needed in a disability discrimination claim, to determine whether the Claimant’s situation meets the legal definition of disability under the Equality Act 2010, if the Respondent has argued that the Claimant’s situation may not meet that test.

Another example of where a Preliminary Hearing is required is where there is a dispute over whether the Claimant’s claims were brought within the strict time limits for Employment Tribunal claims.

• You will receive notice of the Preliminary Hearing in the post. This should include a clear list of what will be discussed and decided during this hearing.
• You may be asked to agree on some things (such as a list of the facts both sides agree on) beforehand, or you may be asked to agree this during the hearing. Be ready to discuss these issues, as it can be difficult or impossible to re-open some points after they have been decided in a Preliminary Hearing.
• You will be asked to help the Tribunal decide about how the case will be managed efficiently, such as dates for future hearings, and the names of your witnesses, what they will talk about, how long they will need to give their evidence, any dates when they could not attend a full hearing, and any dates when you could not attend future hearings.
• You will be asked to help the Tribunal decide on which documents are needed for the case (“disclosure”). If there are documents you need the Respondent to disclose, you should raise this. The final list of documents which everyone will have for the full hearing is usually called “the bundle”. It is up to you to ensure that the final bundle includes everything you might need to refer to.
• Sometimes very important aspects of the case may be decided at the Preliminary Hearing. For example, the Respondent may bring an argument about whether or not your claim was brought “in time”. If the Tribunal decides that your claim was brought “out of time”, it may not be allowed to go any further. You may be sworn in to give evidence at a Preliminary Hearing, or expected to give documents to prove certain points, so be as prepared as possible.
• It is important to bring all your paperwork to every hearing, including a Preliminary Hearing.

If you are unsure about anything, ask the Tribunal in writing in advance if possible. You can also try calling the Tribunal office, quoting your case reference number, to ask if the Tribunal staff can answer your question.

If it is the full hearing, this is the point where your claim will be decided. The full hearing date should be set well in advance, and you must make sure that you and any witnesses you want to call are available.

What to expect:

• Your claim will likely be heard by a single Employment Judge, unless it is a discrimination claim which will be heard by a panel. An Employment Judge is an experienced legal professional.
• Panels are made up of an Employment Judge and two ‘lay members’. The lay members will include one from a Trade Union background, and the other from a business or employer background.
• Hearings are normally open to the public, so there may be an audience.
• If evidence is of a very personal nature, such as sexual harassment or some disability cases, you can apply for the hearing to be private.
• Hearings can take anything from half a day to several weeks depending on complexity. Most are three days or less.

Who will give evidence first depends on the type of claim you are bringing. Be prepared each day, just in case!

• In an unfair dismissal case, the employer/Respondent usually goes first, as the “burden” is on them to prove that the dismissal was fair.
• In a discrimination case, the Claimant usually goes first, as they need to establish a “prima facie” case of discrimination. 
• But – the Employment Judge has a discretion around how to manage the case, and they may rearrange things to accommodate certain requirements. Be ready to tell the Judge if there is any reason why you need things to run in a certain way.

The other witnesses can normally watch the proceedings before their turn. The Employment Judge will occasionally order them to wait outside.

When giving evidence you will be called to the witness table. You will be asked to swear on a holy book or to “affirm”, if you are not religious. You will have already submitted a written witness statement; you are not normally required to read this out loud. After your witness statement has been introduced, cross examination will take place.

Supplemental questions/new issues – You will be given the opportunity to comment on any new matters that may have arisen from the other side’s witness statements. For example, if someone says something new in their evidence which you haven’t heard before, or makes a comment about something which you want to be able to answer, you should be allowed to do so.

IMPORTANT: If you have a break in your evidence while you are sworn in as a witness (even an overnight break or longer), you are forbidden from speaking to anyone about the case until your evidence is finished and you are “released”.

Both parties will have an opportunity to cross-examine the other side and their witnesses.

• This can be a very stressful experience, as they will likely ask tricky questions that may feel like they are trying to catch you out.
• It is okay to ask for a break if you get tired or emotional during this process.
• It is important that you do not get angry at the lawyer or representative asking the questions, this is just them doing their job.
• The questions and approach should not be disrespectful or rude.
• Questions should be based on the contents of the witness evidence and documents already provided.
• Listen very carefully to the question asked, and try to answer yes or no if possible. Don’t volunteer more information unless you are sure it is going to help you. If you didn’t hear the question, ask for it to be repeated. If you need time to think or look at a document to refresh your memory, say so. If you don’t remember, you can say this, particularly if a long time has passed. Your recollection when you wrote your witness statement may be better than by the time you reach the full hearing.
• The judge will understand that this is a stressful, so don’t worry if you get upset.
• There are often tissues available on the table for this reason.
• It often helps to talk directly to the Judge or panel, rather than looking at the Respondent or their representative during questions, and this is perfectly acceptable.

The Judge and panel members may also ask questions before each witness finishes giving their evidence. 

After evidence from the witnesses has finished, each side will have an opportunity to give ‘submissions’. This is their summary of the case, and their final argument about why their side should win.

You or your representative should prepare a final submission which brings together the evidence that the Tribunal has heard which supports your case, and the legal argument as to why you should win.

Tribunals can be stressful, complicated, and can move forward quickly.

Whether or not you have a representative, it is essential to ask questions about anything you do not understand. It may be too late to ask after the hearing finishes.

The judge (and panel, if there is one) will go and make their decision. Depending on how complex the issues in the case are, and time, they may send you out into the waiting area to wait for a decision, or they may send you home until a future date.

They may make a ‘reserve judgment’. This is where the decision will be made at a later date, and sent to the parties.

If they do not reserve judgement, they will give the judgement orally. If this happens and you have lost, you will need to ask for a written copy in case you are able to appeal.

If the Tribunal finds in favour of the Claimant, then the next step will be to deal with “remedy” – that is how to address the problem, or usually deciding how much money the Claimant wins.

The remedy in your case might be dealt with on the day of the full hearing, or they may arrange a hearing after the judgement. When the tribunal deal with remedy, they will want to see evidence so that they can calculate the right amount of compensation.

Please see our detailed advice page on Compensation in the Employment Tribunal for further details, including information on costs.

After the final decision has been made by the Tribunal, either party may decide to appeal.

However, an appeal is not simply where you disagree with the decision of the Tribunal.

You could appeal if you believe that the Tribunal:

• Got the law wrong
• Did not apply the correct law
• Did not follow the correct procedures, and this affected the decision
• Had no evidence to support the decision they reached; or
• Was unfairly biased towards the other party.

The rules on when you are legitimately allowed to appeal are strict, and the time limits to do so, are set out here.

If possible, it is best to get legal advice on any appeal. Appeals against Employment Tribunal decisions are made to the Employment Appeals Tribunal (“EAT”). The EAT is an independent body with a different set of Employment Judges, and it will decide whether or not your appeal can go forward, and if so, what will happen next.

Before you appeal, make sure you have been sent the Employment Tribunal’s reasons for their decision, if you do not already have them. If necessary, so that you appeal on time, you can continue your appeal while you wait for the reasons to arrive. Any appeal must be “in time”, i.e. submitted within 42 days of the date that the written reasons for the Employment Tribunal judgment were sent out. Here is more information on how to appeal. The EAT’s public enquiry phone line is: 020 7273 1021.

The majority of Employment Tribunal claims are “settled” before they reach the final hearing. This means that the parties agree to close the matter, often because they have reached an agreement. If possible, you should seek legal advice on the implications of a settlement, and you will need independent legal advice in order for some types of settlement to be binding.

The reasons for settling a claim include: cost; uncertainty; the time involved in preparation and in waiting for a final decision; confidentiality and reputation management; and issues which come out during the preparation for the case.

Attempts to settle a case can start at any point in the case preparation, and many parties will not wish to have the issues in the case discussed in public, for a variety of reasons. The settlement itself, and any discussions about settlement, will normally be confidential, and not admissible in the Tribunal proceedings or any other Court proceedings, although this will depend upon exactly what is said. The term “Without Prejudice” or a version of this term may be used.

You can still settle your claim by reaching an agreement with the Respondent just before the full hearing, or even while your full hearing is happening. Indeed, settlement often happens at a late stage, for example just before the final evidence is given, or perhaps just after one party has given evidence, particularly once the parties see how the case is going.

There are several different ways in which a claim can be validly settled. Please see our separate advice page on Settlement Agreements and COT3 Agreements.