Preparing an Employment Tribunal Case For a Hearing
This web page should be read in conjunction with our web page on Employment Tribunal Claims.
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If you bring a claim against your employer you will be called the Claimant. The employer defending the claim will be called the Respondent. Reference to ET1 means the claim form and reference to ET3 means response form.
In most cases once an ET1 has been accepted by an employment tribunal, a case management order (CMO) will be issued setting out standard directions, together with time limits for compliance with those directions. This will normally involve:
- details of the remedy sought with supporting documents
- disclosure of list of documents
- preparation of a hearing bundle
- the exchange of witness statements and a statement of issues
At the same time as the CMO is sent out, the employment tribunal will send a notice of the final hearing date.
If the ET1 is complex or includes a complaint of unlawful discrimination, the employment tribunal will normally list the case for a preliminary hearing (rather than issue a CMO) where directions will be fixed by an employment judge. The tribunal will normally send both you and the Respondent a pro-forma agenda for case management to complete and if possible agree before the preliminary hearing.
At the preliminary hearing, the tribunal will set out the list of issues, the date for compliance of the directions and fix a date for the final hearing.
Details of remedy
The employment tribunal will normally send you a pro-forma to complete setting out your loss within 4 weeks of the date of the CMO. If you are legally represented by solicitors, the solicitors will normally prepare a comprehensive schedule of loss which is more detailed than the tribunal’s pro-forma.
The remedy could include:
- compensation (e.g. non-payment of wages)
- a compensatory award (unfair dismissal cases only), which would include loss of wages after dismissal, including pension contributions and/or unpaid wages and/or failure to pay notice money
- a basic award (unfair dismissal cases only)
- a statutory redundancy payment (redundancy cases only)
- a protective award (in collective redundancy situations only)
- injury to feelings and interest (in discrimination/whistleblowing cases only).
Once the pro-form or schedule of loss is completed a copy must be sent to the Respondent (or its legal representatives)
Copies of documents in support of your loss must be provided to the Respondent (or its legal representatives). Typical documents to be provided would include copies of job applications and details of any state benefits that are being claimed.
Employment tribunals are not a place where you can expect to receive a windfall. In relation to complaints of unfair dismissal, wrongful dismissal and breach of contract a tribunal will expect you to have mitigated your loss. This means reducing your financial loss i.e. the steps taken to find alternative employment. This does not necessarily mean the same type of employment.
At first, it may be reasonable for you to look for jobs on a similar salary and in a similar area to your old job. However, as time goes by, you will be expected to consider work, which may be less well paid, part-time or in a different area to the previous job.
You must prove you have mitigated your loss and you will be expected to provide the employment tribunal with evidence that you have claimed Income Support or Jobseekers Allowance from the Benefits Agency and kept all paperwork in support of finding new work, such as: newspaper adverts; copies of any applications for jobs and rejection letters.
List of documents
Both you and the Respondent will provide a list (normally in chronological order) of all the documents in your possession that are relevant to the case. This does not have to include the ET1 and ET3. Each party will then send copies of those documents if requested normally within 6 weeks of the CMO.
In some instances, either you or the Respondent will not have certain documents that do not appear on the other’s list of documents but are relevant to the case. Therefore, the party without those documents can request copies of the documents from the other party. If those documents are not disclosed, the party seeking those documents can apply for an order from the employment tribunal for disclosure under rule 31 of the Employment Tribunal Rules of Procedure 2013.
It is normal practice for the Respondent to prepare the hearing bundle within 8 weeks of the CMO. The bundle should be either fastened together or in a folder:
- in a logical order (normally pleadings first i.e. ET1, ET3 and CMO followed by documents)
- in chronological order
- with an index
The Respondent will normally be required to provide sufficient copies of the bundle for you and the employment tribunal.
These are mutually exchanged by the parties within 10 weeks of the CMO.
Witness statements should be the evidence supporting your ET1 and the Respondent’s ET3 and where the witnesses are prepared to attend a final hearing. They should set out a succinct chronological history of the relevant events of the witness and contain information about those matters about which they can verify rather than speculation or hearsay.
Parties normally want to bring witnesses. But this is not always appropriate. Parties need to think carefully whether this is a good idea. A good witness can be excellent. A bad witness can lose a case. Vague witnesses are not helpful. Always consider exactly what a witness can say that is relevant to the issues.
So-called character witnesses are not relevant or useful in an employment tribunal case.
Early preparation of witness statements will ensure that:
- recollection of events are recorded while matters are fresh and before they are subject to challenge
- witnesses have a proper opportunity to think about the matters and/or events they are dealing with and their evidence is presented in a clear and logical fashion
- witnesses have the chance to thoroughly consider any documents that are referred to in their statements
- the words used in the statements are the witnesses own and they should feel comfortable with what they say
- any areas of difficulty or concern can be identified at an early stage so that witnesses can be properly prepared to deal with them at the full hearing.
The format of witness statements in a tribunal is normally:
- double spaced
- numbered paragraphs
- page numbered
- includes cross-referencing to the documents in the hearing bundle
Statement of issues
If you and the Respondent and legally represented, the employment tribunal will expect the parties to agree a draft statement of issues or questions that the tribunal will need to decide at the final hearing 1 week before the final hearing.
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The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.