The final hearing

The final hearing

The Employment Tribunal will normally consist of 3 members: a legally qualified employment judge (or chairman in Northern Ireland) and 2 lay members.

In certain circumstances in England, Wales and Scotland, the hearing can be held before an employment judge alone, such as in claims for unfair dismissal.

The employee may appear in person or be represented by a professional adviser. Public funding (or 'legal aid' in Northern Ireland) is not available for representation at the hearing in England, Wales or Northern Ireland, but can be available in Scotland.

Usually the employer will have to start the case and present evidence to show that the dismissal was fair and reasonable in the circumstances.

The procedure rules are not as formal in the Employment Tribunal as they are in the county courts or sheriff courts (in Scotland).

However, witnesses must still give evidence under oath and can be convicted of perjury if they lie. In England, Wales and Northern Ireland, the tribunal typically requires parties to draft and exchange witness statements, but Scottish Employment Tribunals don't.

In England, Wales and Northern Ireland, it is usual for the parties to read a witness statement and for a witness to be asked additional questions by their representative. What follows is a question-and-answer procedure where the witness is cross-examined and then re-examined (asked further questions) by the side that the witness is giving evidence for. The tribunal may intervene and ask questions of a witness at any time (although this does not generally happen in Northern Ireland).

In Scotland, evidence is heard by the tribunal as the representative acting for the employee/employer (depending on who the witness is appearing for) asks the witness questions. Then, the witness is 'cross-examined' by the representative for the other side. Finally, the witness can be re-examined by the representative who started asking questions. The tribunal may intervene and ask questions at any time but may also wait until all the questions from the representatives have been asked before asking any questions it may have.

At the end of the hearing, each party is entitled to make a closing speech, which basically sums up the evidence and reminds the tribunal of the relevant factual and legal positions.

The decision

If the tribunal decides a complaint of unfair dismissal in the employee's favour, it can make an award of reinstatement, re-engagement or compensation.

Sometimes a tribunal will just give a judgment regarding whether the employer is liable to pay compensation and then adjourn the case to allow both parties to reach an agreement on the amount of compensation that should be paid. If the parties are unable to agree, they may return to the tribunal to attend a further hearing to decide how much should be paid.

At this hearing, further evidence will be heard relating to the losses if this issue has not already been dealt with. Once all the evidence has been heard, the tribunal will generally adjourn for a short while to make their decision in private.

The tribunal may then give an oral decision immediately and follow this with written reasons either in summary or in full.

In complex cases, a decision may be reserved for a later date, in which case the hearing will be adjourned until further notice from the tribunal.

Costs

In exceptional circumstances, a tribunal may award costs if it considers that one of the parties has acted unreasonably.

Tribunals have the power to order costs of up to £20,000 if they believe that a party has acted abusively, vexatiously, disruptively or otherwise unreasonably. In the light of this power, the employee will have to be absolutely sure that a valid claim exists before any action is taken. If not, the employee will be exposed to the risk of a costs order (or in Scotland an Order for Expenses).

If your employee represents themselves at a tribunal, they can claim from you a fixed hourly rate for their preparation time (e.g. time spent preparing for a tribunal hearing). They can also claim the costs incurred for paying any of their witnesses' expenses. However, they must apply for such an order before they can claim these costs from you.

Financial penalties for employers (England, Wales and Scotland)

Tribunals have a discretionary power to order you to pay a financial penalty if you lose the case. Before imposing the penalty, the tribunal must decide if there have been 'aggravating features', e.g. if you fail to cooperate with your employee or with the tribunal.

Even if your employee has not been awarded any compensation, the court can still order a financial penalty against you. If your employee has been awarded compensation, the financial penalty must be 50% of the award. This will also be the case if there are a number of individual claims made against you by your employees that have been joined together by the tribunal.

The penalty must be for a minimum of £100 and no more than £5,000. You do not have to pay the full penalty if you pay half of it within 21 days. However, before ordering the penalty, the tribunal will first consider whether you will be able to pay it.

Review of decisions and appeals

In certain circumstances, a tribunal may review its decision and can confirm, change or revoke it. These circumstances are:

• The decision was incorrect as a result of administrative error
• A party did not receive notice of the proceedings leading to the decision
• The decision was made in the absence of a party
• New, relevant evidence has become available since the conclusion of the hearing, provided that its existence could not have been reasonably known of or foreseen at that time
• The interests of justice require such a review

A tribunal will not review its decision merely because a party disagrees with that decision.

A party may apply to the tribunal at the hearing immediately after the decision has been given or they may send it a written request for a review within 14 days of the date on which the decision was sent to the parties.

In England, Wales and Scotland, if the unsuccessful party believes that the decision of the tribunal is incorrect on a point of law, they have a right of appeal to the Employment Appeal Tribunal (EAT) - they must do this within 42 days of receiving the full reasons for the tribunal's decision.

See the EAT website for more information on the appeals process

In Northern Ireland, the parties have a right of appeal to the Court of Appeal against the decision of a tribunal on a point of law. Written notice must be given to the Secretary of Tribunals within 42 days of the date on which the tribunal's decision was issued and the notice must specify the point(s) of law relied upon. Any application to extend the time limit can only granted by the Court of Appeal. Where the tribunal is satisfied that the request does contain a genuine point of law, it must refer the matter to the Court of Appeal.

Enforcing judgments

If the tribunal issues a judgment, and either the employer or employee does not comply with it, then further steps need to be taken in order to enforce it.

In England and Wales, the judgment will need to be transferred to a county court for it to be enforced. In Northern Ireland, judgments are enforced by the Enforcement of Judgments Office.

The steps which must be taken are different in Scotland and specialist advice should be taken about how to enforce a tribunal's judgment.