At the employment tribunal hearing and beyond — Scotland

This advice applies to Scotland only

This section of notes explains what is likely to take place at a hearing. It is not intended to be a full explanation of advocacy skills.

If you are new to tribunal advocacy, try to watch some hearings at your local tribunal (particularly cases where the parties are represented).

The hearing
Generally speaking, employment tribunal claims are heard by a panel of three. This panel is comprised of the Employment Judge (who is legally qualified and experienced in employment law matters) and two lay members.

Opening statement

It is rare for the parties to be asked to make opening speeches about the case. However the tribunal might want to discuss the case with the parties at the outset to identify the issues, clarify which witnesses are being called, etc.

Unless otherwise agreed by the parties and the tribunal, the claimant and their witnesses will give evidence first in a discrimination case.

Witnesses

In Scotland, witnesses who have yet to give evidence are not allowed to sit in the hearing. This is different to the position in England and Wales where witnesses are permitted to sit through each other’s evidence.

Each witness (including the claimant) will be subject to the following process:

Examination-in-chief

The witness will be sworn in before giving evidence.

If the party who has called that witness has a representative, they will be asked questions by the representative. If there isn’t a representative, the tribunal will ask questions.

The main rule in examination-in-chief is that leading questions cannot be asked by the advocate representing the party.

A leading question is one which suggests the answer — it is impermissible because the answer is not the witness’s own words. So:

Leading question — “were you frightened?”

Non-leading question — “how did that make you feel?”

Leading question — “were you dismissed at the meeting?”

Non-leading question “what happened at the meeting?”

If something is agreed by the other side you can ask a leading question to move the story of the case on:

“The next time you met Mr Smith was on 20th January 2018. Is that correct?”

It is important that all the evidence required to prove the claim is given to the tribunal — if important evidence is missed out the tribunal cannot consider it.

When you get to a point where there is a relevant document you will need to stop the witness and tell the tribunal what page in the bundle the document is on. The tribunal will read the document. If it’s a lengthy document you may want to highlight to the tribunal which parts you will be referring to, to save time.

Cross-examination

Cross-examination is the questioning of your opponent’s witnesses.

There are two aims to cross-examination:

• to weaken the other side’s case
• to establish facts helpful to your own

The art of cross-examination starts with the preparation. You will already know which parts of the other side’s argument are strongly contested or denied by your client.

It is of paramount importance that you ‘put your case’ to a witness. You must challenge all parts of the other side’s evidence that your client doesn’t accept. If you do not raise these points you run the danger of being seen to have agreed with the other side’s evidence. The tribunal may not allow you to then challenge the other side’s statement in your summing up. You have an obligation to make sure that the witness has the opportunity to respond to specific allegations. This is especially important when you allege the witness said or did something which has not been covered in the initial questioning, the ‘examination-in-chief’ stage, or, in circumstances where witness statements are being used, said or did something not mentioned in the witness’ statement, or where you believe they have been untruthful.

However do not waste time cross examining a witness about something which the client disputes but which is not relevant to the issues, unless you think you can discredit the witness’s evidence generally (ie show that their recollections in general are inaccurate). Not only will you not get any evidence which assists your case, but you might get an answer which undermines it.

Questions by the tribunal

Practices vary and it is common for the tribunal to ask questions throughout the proceedings. If there is a more formal procedure, the most appropriate place for tribunal questions is after the cross-examination as this may cut down or save the need for re-examination.

Re-examination

After cross-examination you will be given the opportunity to re-examine your witness. This is only permitted on matters that have arisen out of the cross-examination. You are not permitted to raise new issues. If the worst happens and you realise that there is a new issue, which you must cover, you should admit to the tribunal and ask permission to present the issue at this late stage. The other side can object to this and will of course be given the opportunity to cross-examine on the issue, if permission is granted by the tribunal.

Closing submissions

Closing submissions follow the order of the evidence so the party who started first will do their closing submission first.

In general, you should aim to make short submissions and make each point clear to the tribunal. Aim to point out the evidence that supports your case and proves the infringement of the legal right in question. Do not simply give the tribunal a summary of everything they have heard. Your job is to make sure that any evidence given by the respondents which helps your case is highlighted.

It is the tribunal’s job to interpret the law relating to the claim on the facts that are given to them so it is usually not necessary to quote a law to the tribunal.

If you have researched legal authorities that may help the tribunal make their decision, point these authorities out to the tribunal as concisely as possible. You should have provided copies of any legal authorities to the Tribunal so you should direct them to relevant paragraphs in the judgment you are referring to.

The decision

The tribunal may, if there is time, consider their decision and inform the parties on the day. Otherwise the judgment will be “reserved” and sent by post.

Note that there is a difference between the “judgment” (i.e. the decision on whether the claim is successful) and the “reasons” for it, (i.e. why did the claim succeed or fail). Under the tribunal rules the tribunal or judge must give reasons for the judgement or orders they make. These reasons can either be oral or written. If they are given at the time of the hearing they will now normally only be given orally. If the judgment is reserved they will be given in writing.

Where oral reasons are given they will not normally be followed by written reasons. Parties can request written reasons either at the hearing or within 14 days thereafter. If a judgement is sent by post then the time limit for requesting written reasons is 14 days from the date it is sent to the parties (rule 62 (3) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 at Schedule 1).

If you are considering making an appeal to the Employment Appeal Tribunal it is vital that you obtain written reasons for the judgment since an appeal cannot be made without these.

Expenses risks

At a full hearing of a claim, the employment tribunal has power to make an order that you should pay something towards the respondent’s expenses in two situations:

• if they think that you were vexatious, abusive, disruptive or unreasonable in some other way, in the way that you conducted your claims
• that your claim had no reasonable prospect of success.

If you think that the respondent behaved in this way, you can apply for a preparation time order against them if you have incurred legal expenses as a result. This means that the respondent will have to pay towards your time spent on preparing your case (but not your time at the hearing). This is paid at a fixed hourly rate, which is currently (September 2018) £38 per hour.

The rules relating to costs (expenses) orders and preparation time orders are set out in the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 at Schedule 1 (rules 74–84).

The tribunal can make an order for expenses to be paid up to £20,000 without going to a further assessment hearing (a further assessment hearing in Scotland is usually heard by the Auditor of the Sheriff Court).

The tribunal can take into account the ability of the claimant or respondent to pay any expenses order, when deciding how much to order. If you think the other side is likely to ask for expenses, it is a good idea to have a financial statement available for the client showing their income and outgoings.

Expenses might be awarded for unreasonable conduct if, for example, one of the parties:

• does not comply with orders made by the tribunal
• includes irrelevant evidence (witnesses or documents) which make the hearing much longer than it should be
• does not turn up to a hearing
• wastes the tribunals time in a hearing in unnecessary argument or cross examination or in another way

Without prejudice save as to expenses / costs

In Scotland, costs are usually referred to as “expenses”. The Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 at Schedule provide at rule 74(1) that all references to costs (except when used in the expression “wasted costs”) should be read as references to expenses in Scotland. However, it is noted that, in practice, the terms can be used interchangeably.

Sometimes a respondent will ask the tribunal to make an order for expenses because the claimant refused a settlement offer that was headed ‘without prejudice save as to expenses /costs’. This type of settlement offer is quite often issued to the claimant by way of a “costs warning letter”. The without prejudice protection in Scotland covers correspondence, concessions or statements made with a view to trying to achieve a settlement. However, without prejudice correspondence or settlement discussions can be referred to in relation to expenses where this has been made clear to the claimant, and can be placed before the tribunal.

If you receive a settlement offer or correspondence of this kind from the respondent or the respondent’s representative, you should review your case plan and make sure you are conducting the claims in the way that the tribunal expects and be able to explain turning down a ‘good’ offer, to protect you from an expenses risk.

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