• Robert Spicer

Employment Tribunal: hearing and advocacy

ET hearings are generally recognised as being stressful and unpredictable, particularly for unrepresented claimants. In practice, employers who are represented by a solicitor or by a barrister may, paradoxically, be at a disadvantage if the claimant is unrepresented, because the ET judge may be more sympathetic to the claimant’s lack of knowledge of the rules of tribunal evidence and procedure. The reality, however, is that ET hearings pose extremely significant difficulties for unrepresented claimants. These difficulties can be reduced by attending other tribunal hearings in advance and observing the way in which they function.

Lawyers do not have an advocacy monopoly in ET hearings. Claimants may be represented by a person of their choice.

Composition of the ET

The ET is composed of an employment judge and two lay members. The lay members normally have experience in employment issues. They are selected from a panel following consultation with employer and employee organisations.

It is fair to say that the role of lay members has greatly reduced in significance and you should expect the hearing to be conducted by a judge sitting alone.

The clerk of the tribunal will normally provide general administrative help.

Advocacy points in general:

  • The judge should be addressed as Sir or Madam.

  • Hearings can be extremely boring and it can be difficult to keep up concentration, particularly on a hot afternoon.

  • It is now generally accepted that the English tradition of oral advocacy involves a massive waste of time and money. This applies to a lesser extent in the ET because of case management orders and the fact that most evidence will have been read by the judge before the hearing.

  • Most ET advocacy amounts to cross-examination of witnesses on their statements.

  • The “art” of the advocate is often seen to be the asking of questions of such detail and complexity, endlessly repeated with hardly noticeable variations, until everyone has lost track of reality and any answer can be challenged.

  • In practical terms, ET hearing advocacy depends largely on thorough preparation. If in doubt, seek the advice of the judge. If nervous, take deep breaths and sip water to deal with a dry mouth.

  • Be aware that the other side (even a barrister) will almost certainly be stressed and anxious but hiding it. They may have picked up the papers for the case the night before the hearing, have had little sleep and travelled a long way to the tribunal.

  • The supposed image of calm efficiency in the tribunal is very different from the chaos which can reign in reality. Documents get lost, witnesses are late or don’t turn up at all. Be prepared for the unexpected.

Adjournment of hearing: disabled claimant

Leeks v Norfolk and Norwich University Hospitals NHS Foundation Trust (2018). L complained of disability discrimination. The employer applied for an order for L to provide further and better particulars (details of the claim) within 20 days and listed a preliminary hearing for a month later. L requested an extension of 11 weeks to comply with the order for particulars and for a further month for a preliminary hearing. Her request was based on her own ill-health and that of her husband. It was supported with letters from a number of doctors.

The request was refused on the basis that there was no full medical report. L renewed her request and sought a telephone case management hearing. At the preliminary hearing in the absence of L, the employment judge struck out the complaint on the basis that the claim had no reasonable prospect of success and L’s failure to comply with tribunal orders. He also awarded costs against L on the ground that she had acted unreasonably in bringing and conducting the proceedings. L appealed against the costs order, arguing that the tribunal judge had considered correspondence marked without prejudice save as to costs and had failed to make reasonable adjustments.

The appeal was dismissed.

The refusal of an adjournment and the decision whether to continue on the absence of a party was a case management decision.

Adjournment: mental health issues

Shui v University of Manchester and others (2018). S had a history of psychotic depression. He was able to pursue litigation and he complained of unfair dismissal and disability discrimination. Before the hearing, an issue arose as to his ability to take part. At a preliminary hearing, the judge referred to a letter from S’s doctor which stated that S was unfit to attend the hearing and should apply for a postponement. The respondents stated that if S applied for a postponement, they would apply for the claim to be struck out. S chose to proceed. The ET made many adjustments to help S to participate. During cross-examination S became visibly distressed. The tribunal agreed to a submission by the respondents’ counsel to proceed without further cross-examination. The claims were dismissed. S appealed to the EAT on the basis that he had been denied a fair hearing.

The appeal was dismissed.

Where litigants in person had mental health issues, employment tribunals had a responsibility to make allowances and to ensure that such litigants were in a position to make a free and informed choice as to the course of proceedings.

S had been aware that he could apply for a postponement but had chosen not to do so. The tribunal had been mindful of its obligations to the claimant. Looked at overall, S’s right to a fair trial had not been undermined.

Self-representation at ET hearings

The main drawback of self-representation is that it almost inevitably results in unbalanced or unequal hearings where the employer has legal representation.

Case law examples include:

Significance of legal niceties

Aynge v Trickett t/a Sully Club Restaurant (2018). On October 15 2016 A’s employer told her ‘this is your last shift tonight’ and ‘that’s it, we’re done’. She submitted an ET1 complaining of unfair dismissal and stating that she had been dismissed on October 15. In her subsequent witness statement she stated that she was told by the employer that she was not dismissed but she was not to work a night shift again. The employer argued that she had conceded that she was not dismissed and that her claim must fail. A was unrepresented. The ET dismissed her claim. A appealed to the EAT.The appeal was allowed and the matter remitted to another tribunal. The EAT made the following points:

The employment judge had taken an unduly technical approach and had not taken enough account of the fact that A was representing herself.

As A was a litigant in person, she could not be expected to understand the significance of legal niceties.

Even if the judge was right that the ET1 could not be interpreted as involving a constructive dismissal on October 15 or a constructive dismissal on October 16, he should at least have considered allowing A to amend her ET1.

Mental health issues

Anderson v Turning Point Eespro (2019). In 2009 A brought a sex discrimination claim against her employer. The claim was successful. The remedies hearing did not start until 2012. Judgment was given in 2015. A’s poor mental health was one reason for the delay. A was unrepresented and expert psychiatric evidence was needed. A appealed on the basis that she had not had a fair trial. She argued that insufficient adjustments had been made to take account of her mental health and that the ET should have sought evidence on what adjustments were necessary to achieve a level playing field.

The EAT stated that the responsibility to propose adjustments or particular measures rests with a party’s representatives rather than with the court.

The tribunal can expect a party’s interests to be looked after by his or her representatives. There was no need for a ‘ground rules’ hearing in every case with a disabled claimant and no general need to obtain specific evidence on potential adjustments.

Recording proceedings

Heal v The Chancellor, Master and Scholars of the University of Oxford (2019). H stated in his ET1 that he had a disability. He requested some adjustments including permission to use a recording device at the hearing because his conditions made it difficult for him to take contemporaneous notes. The ET ordered that the application should be made at a preliminary hearing. H appealed to the EAT on the grounds that he should not have to make an application, that the tribunal erred in failing to consider the matter before the preliminary hearing and in failing to consider that H would be in contempt of court if he attempted to bring a recording device into the building before permission was granted to do so.

The appeal was dismissed. The ET was entitled to deal with the application at a hearing rather than on the papers. There was no error of law in not considering the matter in advance of the hearing although the tribunal had not precluded that course in any event.

The EAT gave the following guidance on when parties might be permitted to make an audio recording of proceedings:

  • Permission to record proceedings is unlikely to be granted on a routine or regular basis. Each case will have to be determined on its own facts. However, it seems very unlikely that permission would be granted where the applicant fails to demonstrate that, for reasons related to a disability or medical condition, there is a complete or partial inability to take contemporaneous notes and that such inability would result in a substantial disadvantage.

  • The risk that a recording will be used for purposes other than that for which leave is granted can be mitigated by the tribunal issuing strict limitations on other use. If a recording is permitted simply to relieve a person of the burden of taking notes, then that recording will generally have no greater status in proceedings than that of any other set of notes. In particular, Tribunals will no doubt wish to remind parties that the restriction under the Contempt of Court Act 1981 on publishing a recording by playing it in the hearing of the public would also apply to the posting of any recording or extract thereof online.

  • The ET’s notes of evidence would continue to be the conclusive record of the hearing before it, certainly whilst it remains the position that employment tribunal proceedings are not routinely the subject of official digital recording. The fact that a tribunal has consented to a recording being made by a party, and the undisputed content of that recording appears to conflict with the tribunal’s written notes of evidence, would not mean that the recording automatically takes precedence. Whether or not it should take precedence in respect of any issue will be a matter for the tribunal to determine having regard to all the circumstances.

Member of ET alleged to have fallen asleep

Elys v Marks and Spencer plc and Others (2014). E complained of unfair dismissal and discrimination. Her complaints were dismissed and she applied for a review, alleging that a lay member of the ET appeared to have fallen asleep. The ET refused the application. It stated that it should itself decide whether there had been a procedural irregularity and it accepted the member’s explanation that he had been taking medication and had been alert except for a few seconds. E appealed to the EAT.

The appeal was dismissed.

Having regard to all the material evidence, including the medical evidence, any observer would conclude that there had been no improper risk of inattention and no procedural irregularity sufficient to vitiate the decision.

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