Keep It Legal
In her last of three articles about employment tribunals, which can cost doctor employers many thousands of pounds if they lose, solicitor Julia Gray explains what to expect if you face a hearing.
Employment Tribunals (ETs) are based in regional centres across England and Wales and this article applies only to them, not Scotland where a slightly different system is in place.
Currently, some have significant backlogs of cases, which means that hearings are being listed up to two years into the future. Partly as a result of the Covid pandemic, many cases are now heard virtually.
The ET will determine the type of hearing in advance, but changes are sometimes made at short notice. The three types of hearing are:
Traditional ‘in-person’ hearings, held in an employment tribunal or court room;
Remote/virtual hearings via HM Courts and Tribunal Service’s Cloud Video Platform (CVP). These are conducted remotely with participants using web-based software;
Hybrid hearings, which are a combination of in-person and CVP – some of the participants attend via CVP and others in person.
The length of the hearing depends on the complexity of the case and the number of witnesses giving evidence. Straightforward cases with just a couple of witnesses can be heard in a single day.
Ideally, you will want all your witnesses to attend the full hearing, and not just the days when they give their evidence. Although that can lead to resourcing issues in the workplace, it means that the witnesses can listen and consider the rest of the evidence.
The type of claim also determines whether the case will be heard by a judge sitting alone, or by a judge accompanied by two ‘wing members’ to form a panel.
The ET hearing room is set out like a court room. The judge sits at one end, usually on a raised platform, alongside any wing members. They should be addressed as ‘Sir’ or ‘Madam’.
ET hearings are usually conducted in public. This means you can attend in the capacity of an observer to help you prepare for your own case. It also means that members of the public, and occasionally the press, may sit in on your case.
Many respondents are represented by an advocate in the hearing – a solicitor or barrister. Claimants often cannot afford an advocate and present their case themselves.
If you are represented by an advocate, you will usually only speak in the hearing when you are giving your evidence. If the hearing is virtual, the judge sometimes asks everyone apart from the advocates to switch off their cameras and microphones when not speaking. It is an offence to record or broadcast any part of an ET hearing – whether virtual or in-person.
If you are a witness, you are allowed to listen to the evidence of the other witnesses before and after you give yours.
When it is your turn to give evidence, if the hearing is in-person, you will be called to the witness stand – which is often just a desk with a chair behind it.
You will be asked to swear an oath on a religious book of your choice, or ‘affirm’, depending on your personal preference and beliefs, that the evidence you will give is the truth.
You are allowed to refer to a copy of your witness statement and the bundle when you are giving evidence, but they must not be annotated or tabbed.
After some preliminary questions, you will be asked questions by the claimant or, if they have one, their advocate. This is called cross-examination.
You are also likely to be asked some questions by the judge or panel. Bear in mind that the ET may form a view of you, and the reliability of your evidence, based on the way you answer questions.
The purpose of cross examination is to test your evidence, expose any weaknesses and, potentially, undermine your evidence. The credibility and reliability of your evidence may be challenged.
Cross-examination can be demanding and witnesses should have support available before and after giving evidence.
When all witnesses for both sides have given evidence, the advocates will take it in turns to make closing submissions summarising the case and the legal arguments. If there is time, the judge will give a decision at the end of the hearing.
Liability and reeemedy
There are two elements to an ET hearing: liability and remedy. If it is determined that the respondent was ‘liable’ for any claim, the ET will need to go on to consider ‘remedy’, that is to say, what compensation, if any, to award the claimant.
Sometimes there is insufficient time at the end of the hearing for the judge or panel to make a decision, in which case a written decision will be sent to the parties by post or email. Depending on the outcome, a separate remedy hearing will then have to be arranged for a later date.
Damages for successful unfair dismissal claims are calculated using a combination of a formula based on the claimant’s age and length of service, plus compensation for their loss of earnings.
The total amount that the ET can award is capped at a level which is adjusted annually; the maximum that can currently be awarded for unfair dismissal is just under £106,000.
The cap can be exceeded where the case involves whistleblowing or discrimination.
Compensation for discrimination and whistleblowing is calculated differently and can take account of injury to feelings as well as lost earnings, which, in serious cases involving high-earning claimants, can extend to hundreds of thousands of pounds.
The most up-to-date figures currently available show that the average (mean) ET award for a successful unfair dismissal claim in 2019-20 was £10,812 and for a disability discrimination claim £27,043.
Unlike other parts of the civil court system, the loser in an ET does not usually pay the legal costs of the successful party.
The ET judgment will be published online. It will name the parties, include detail about the claim, witness evidence and any compensation awarded.
There is a right to appeal to the London-based Employment Appeal Tribunal, but appeals are only allowed against an ET’s findings of law rather than findings of fact. So, in practice, appeals are not commonplace.
The public nature of ET decisions along with the inevitable cost and risk of litigation incentivises many parties to settle.
Resolving employment issues and avoiding claims in the first place is clearly preferable to defending a claim, but not always possible. Get expert advice to help you to understand and navigate the tribunal process if a claim does come your way.
Julia Gray (right) is an associate at Hempsons solicitors