In this section we focus on the presentation of your case at the Tribunal. At this stage, all of the preliminary steps will have been taken, such as the Case Management Discussion
, or a Pre-Hearing Review.
A date will have been set down for the hearing of your claim at the Case Management Discussion and this last and final stage of your case is the focus of this part of the Guide.
Negotiations and settling the claim
The fact that the case is listed for hearing does not preclude the parties settling the case before, or indeed on, the day of hearing. In fact, quite a number of cases are settled on the day of hearing. Be prepared, therefore, to consider that there might be negotiations on the morning of the hearing. The general advice offered elsewhere in this Guide about settling a case
also applies at this point.
It might be helpful if you pre-prepare a draft Compromise Agreement
, setting out the terms you want included and bring this with you to the hearing. Setting out your terms in this way will focus your mind on what terms you are prepared to settle the case, if you have not already done so, and means that you will prepared for face-to-face negotiation.
It might be the case that the negotiations between you and the Respondent on the morning of the hearing are actually getting somewhere and in that case you might wish to ask the Tribunal to postpone the commencement of the hearing for a short time to carry on those negotiations. You should communicate this to the Tribunal Clerk who will then pass your request to the Tribunal.
If the claim is settled then the usual practice is to announce to the Tribunal, in a formal way, that the matter has been settled and ask for the claim to be ´stayed´
for a number of weeks – usually 6 – to allow implementation of the settlement. If, for some reason, the settlement is not implemented then the claim can still be pursued. However, this would be a very rare situation.
What papers will I prepare for the hearing? - Organising your bundle
At the Case Management Discussion
the Tribunal will have required the preparation of a bundle of the key documents for the hearing. This bundle will also be the one used by the Tribunal and should include the documents upon which you intend to rely in the course of the hearing.
You can’t introduce new documentary evidence at this stage unless the Respondent agrees or, in exceptional circumstances, the Tribunal authorises you to introduce it.
In the event that you are making a last minute request to have documents admitted you should be prepared to explain why the request is only being made at the last moment. The Tribunal will be very
reluctant to allow late admission of material in this way. Hence the need for thorough preparation before the Case Management Discussion
and proper and careful examination of any documents or material that comes your way before the hearing.
Remember that the Tribunal will be familiar with the broad sweep of the case, though they will not have read all of the papers. You will not be reading out the content of the bundle of documents from beginning to end but referring witnesses and the Tribunal to particular parts of the bundle that are relevant to your claim.
It might also be helpful to prepare for your own use a single page summary of the case, showing what you need to prove and how you intend to prove it using the evidence available. In the mass of papers which you will have accumulated and considered to date a single page setting out the main elements of the case may be invaluable because there may be a danger that you cannot now see the ‘wood for the trees’ with all the paperwork accumulated. Cross-reference that summary of your case with the Bundle to make the navigation between the two even easier. This summary is only for your own use and should not be provided to either the Respondent or the Tribunal.
You should also consider preparing, for your own use,
- the opening and closing statements, and
- lists of questions for each of the witnesses.
You probably won’t need to follow these documents impeccably but if you have the work done it will make it considerably easier for you at the hearing. You do not furnish these documents to the Respondent or to the Tribunal.
Preparing your submissions and examination of witnesses
You should appreciate that preparation of your case is crucial including the preparation of the questions you intend to ask of your witnesses and the Respondent’s witnesses. It is tempting to think that the appropriate questions and submissions will occur to you ‘on the day’ but this is rarely likely to happen.
Preparing your submissions and questions in advance also makes you focus on what is the central goal in any Tribunal hearing, namely, what it is that you must prove to the Tribunal. In fact, a good starting point might be to consider what your closing submission to the Tribunal might be and then consider what evidence you will need to have introduced - either by way of documents or as answers from witnesses to questions put by you - to support that submission.
What do I do if I need witnesses to attend? - Confirming your witnesses
This is a matter you should have considered and dealt with well in advance of the hearing at a Case Management Discussion as it might be necessary to obtain a witness order to compel a witness to attend
or witness statements may also need to be compiled.
Tribunal personnel and other matters
Tribunal hearings usually take place in Killymeal House, 5 Cromac Quay, Ormeau Road, Belfast and occasionally in other centres throughout Northern Ireland, such as Omagh, Co Tyrone.
Tribunal Members and Tribunal Clerk
Each Tribunal panel is composed of three persons; a legally qualified chairperson, and one representative from each of employers’ organisations and employees’ organisations. An employee of the OITFET attends the panel and this person is known as the Tribunal Clerk.
Make yourself known to the Tribunal Clerk when you arrive for the hearing and if there are any last-minute hitches, or perhaps settlement negotiations, keep the Clerk informed and s/he will alert the Panel and you may be allowed further time before the commencement of the hearing to resolve those matters.
Role of Chair and overriding objective of Tribunal
The overriding objective of the Tribunal is to deal with cases justly. It is worth remembering this objective in the course of the proceedings and referring to it to support any argument you might have to make about the Tribunal’s processes and the conduct of the hearing generally.
It might also be worth invoking Rule 10 of the Industrial Tribunal Rules or Rule 9 of the Fair Employment Tribunal Rules (as appropriate) which gives the Chairperson a general power to manage proceedings and allows him or her to make an order on relation to any matter which appears to him or her to be appropriate. This open-ended power might prove helpful in persuading a Chairperson to manage the proceedings in a particular way.
Layout of room
The Tribunal members sit on a raised dais with the Chairperson seated in the centre. The Clerk of the Tribunal sits in a separate desk to the left of the Panel as you look at the Panel face-on. The parties sit either side of a table beneath the dais on which the Panel sits. The Claimant usually sits on the left with the Respondent on the right, as illustrated in the photographs below:
Addressing the Tribunal
You can refer to the Chairperson of the panel as ‘Mr Chairman’, or ‘Madam Chairwoman’ or simply as ‘Chairman’. When addressing the whole Tribunal you can refer to ‘The Panel’ or ‘the Tribunal’.
Format of the hearing
Tribunals are given a free hand to conduct proceedings in a manner which is most appropriate for the just handling of the proceedings. There isn’t, therefore, a fixed procedure that the Tribunal must follow but usually the Claimant, given that s/he must prove his or her case, must go first:
- This usually involves you making an opening statement about your case and then calling your witnesses. They give their evidence by reading out their witness statements or by answering your questions.
- Those witnesses may be cross-examined by the Respondent’s representatives.
- Your witnesses may be re-examined by you about matters that arose in cross-examination and not previously the subject of questions by you.
- At the conclusion of your case (i.e. when all the your witnesses have been examined and cross-examined), the Respondent calls and examines its witnesses, who, of course, may be cross-examined by you. (The Tribunal members are also free to ask questions of the witnesses and often do so.)
- When all the oral testimony has been given, the proceedings usually conclude with a closing statement from the Respondent and you, in that order, meaning that the Claimant has the last word.
What must I prove? - The burden and standard of proof
Bear in mind that, in all discrimination cases, the burden is on the Claimant to show – on the balance of probabilities – that the Claimant was discriminated against in a manner which is unlawful, under the appropriate legislation. It is best to understand the ‘balance of probabilities’ standard as requiring you to show that ‘more likely than not’ you were discriminated against.
This means you must set the pace, so to speak, in that you have to bring evidence before the Tribunal that demonstrates that, more likely than not, you were the victim of unlawful discrimination.
However, in discrimination cases, there is a significant difference with other legal cases, in that the burden of proof shifts to the Respondent if the Claimant shows a prima facie
case of discrimination. The Respondent in that case is under the obligation to demonstrate to the Tribunal why its actions should not be considered discriminatory.
This means, in effect, that the Respondent must offer reasons for its actions and decisions and is in danger of losing the case if it simply denies everything but offers no explanation for its actions.
What sort of evidence can I have admitted at the hearing? - Admissibility of evidence
You need not be overly concerned about technical rules of evidence when appearing before a Tribunal because the Rules of Procedure direct a Tribunal or Chairperson to ‘seek to avoid formality in his or its proceedings and shall not be bound by any statutory provision or rule of law relating to the admissibility of evidence’.
Common sense will tell you that direct, eyewitness, testimony is the most effective evidence. Hearsay evidence - where someone is repeating what someone else told them, for example - is less effective but the weight or importance to be attached to it should be a matter for the Tribunal, and that is what you should stress in your closing submissions.
How will I begin my case? - Opening statement
You are now at the point that you have been preparing for quite some time. The paperwork is complete, the hearing date has arrived, your witnesses are in attendance and the hearing is about to commence.
You should consider making a short, to the point, opening statement outlining the nature of the case you intend to prove. Bear in mind that the Panel will be broadly familiar with the case from the papers, and that the Case Management Discussion
will have narrowed the legal and factual issues in dispute between you and the Respondent, and the Statement of Facts and Issues
, produced as a result of the Case Management Discussion, will form part of the bundle. There is no need therefore to labour the opening statement. A short outline of your case should suffice, stressing why it is you allege discrimination on the part of the Respondent.
Examining your witnesses
Call your witnesses in which ever order you consider logical. Where a witness statement has been prepared then that witness will simply read his or her statement. You may be permitted to ask some questions of your witness to elaborate on some aspect of the statement but do not count on this as the Tribunal will only allow further evidence from your witness in exceptional circumstances. You will not be allowed to simply examine a witness about everything already in his or her witness statement. (Your witnesses should have taken the opportunity to address matters raised in the Respondent’s witness statements in supplementary witness statements so do not imagine that they will be able to address them when giving evidence before the Tribunal.)
Remember, the purpose of a witness statement is to allow both sides to see the key evidence of the other in advance and to shorten the proceedings. Don’t omit any important evidence from the witness statement because you think that you will ‘surprise’ the Respondent with it at the hearing. You are unlikely to be allowed to introduce that evidence at that late stage.
Any questions that you ask of your witnesses should be geared towards furthering your claim about the discrimination that you allege occurred.
When asking questions of the witnesses that you call, you must ensure that you do not ‘lead’ them in the giving of their evidence. This means that you cannot ask a question which suggests or prompts a particular answer. For example, in Mary’s case
you may not ask “You overheard the manager say to the assistant manager that he would never employ a woman, didn’t you?’ Instead you may ask “Did you overhear the manager say anything to the assistant manager about employing a woman?’
You should, having planned your case and your examination of your witnesses, be alert to the evidence you want your witnesses to adduce. Because you cannot lead your witnesses you cannot prompt them directly to mention things which they appear to have forgotten. But you can ask them, for example, whether they have anything they wish to add or whether there are any other issues to matters that they haven’t mentioned that they can recall or testify to.
Be aware that your witnesses may be asked to remain outside the Tribunal room while other witnesses are giving their testimony. This is to ensure that a witness is unaware of what other witnesses have said prior to testifying. If a witness’ evidence in chief is interrupted by a break for lunch or some other event, that witness is not allowed to discuss the case with anyone over the course of that break.
‘Putting your case’
Make sure that the matters that form part of your case are addressed in the course of your testimony and that of your witnesses. You cannot cross-examine the Respondent’s witnesses about matters which have not been put before the Tribunal in evidence, whether in oral or written form.
So, if you allege that a certain person made discriminatory remarks to you, and this allegation is not clear from the evidence you put before the Tribunal, then you will not be allowed to challenge the Respondent’s witnesses about these remarks when you are cross-examining them. You won’t then be in a position to ask, for example, whether a witness heard this remark being made. If this occurs the Respondent will object saying that there has been no evidence about those discriminatory remarks being made to you. You will have lost your chance to press this matter by your failure to bring forward evidence about it.
Equally, you can object it one of the Respondent’s witnesses raises a matter in examination which was not put to you or your witnesses in cross-examination. So, for example, if in Phillip’s case
one of the Respondent’s witnesses says he overheard Phillip say to one of his co-workers that he was going to ‘invent a case’ against his employer just to squeeze money out of him, and this evidence was not put to Phillip’s witnesses, then Phillip will be free to object to any reference to it by pointing out this failure by the Respondent.
Cross-examination and re-examination of witnesses
Cross-examination follows immediately after the evidence-in-chief of a witness. When the cross-examination is complete the party that examined the witness will get a further opportunity to ask questions of that witness – by way of re-examination – but those questions are confined to any issues that arose in cross-examination only. You can’t introduce new evidence by way of re-examination of a witness.
You should plan your cross-examination before the hearing. Do not expect that you will think of all the relevant questions to ask when your opportunity comes to cross-exam the Respondent’s witnesses. Those questions should be prepared having regard to the matters which you need to prove in order to sustain your claim. You will, therefore, have to give some consideration to the law to understand what you are required to show before the Tribunal considers you have been discriminated against.
There are unlikely to be any dramatic revelations during cross-examination. Witnesses rarely ‘break down’ under cross-examination and admit that they have been telling lies all along.
Concentrate on securing evidence that relates to your complaint of discrimination, showing, for example, less favourable treatment if you are arguing direct discrimination. This evidence might come in the form of inconsistencies between witnesses’ versions of events or in the form of evasive, or equivocal, replies or perhaps in the unlikelihood of the witnesses’ version being correct. In Phillip’s case
, for example, the focus of the cross-examination might be on the reasons why other workers who behaved as he did weren’t dismissed, as he was.
Remember, the golden rule is that you use cross-examination to elicit answers and facts only. Save any comments you have about the evidence for your closing submission. So, for example, you might take a witness through various matters in cross-examination and conclude that he cannot be telling the truth. Any comment on the credibility of his evidence is one for closing submissions, where you point out to the Tribunal that on the basis of the evidence, the witnesses version cannot be correct.
When both parties have concluded their cases, having examined their witnesses, they may then address the Tribunal in their closing submissions. Your focus in making a submission should be on the evidence that has been opened before the Tribunal and the extent to which this meets the legal definition of discrimination that you are seeking to prove. As with the opening submission, the closing should be to the point and should be relevant.
This is your opportunity to comment on the evidence adduced and to invite the Tribunal to draw certain conclusions from the evidence. You can, for example,
- highlight inconsistencies in the Respondent’s evidence, or
- suggest that its evidence is less credible than yours, or
- emphasise the extent to which you have shown that the legal definition of discrimination, harassment or victimisation (as the case may be) has been made out by the evidence you have introduced.
The closing submission is not an opportunity to introduce any new evidence or make any new points but simply a way to highlight the manner in which you say the case has been proven, on the balance of probabilities.
It is a good idea to have a closing submission drafted, even if only in bullet point form. If the hearing has gone according to your plan then your draft closing submission should be very relevant. It will act as an aide memoire as you seek to highlight for the Tribunal those aspects of the evidence that support your claim to have been discriminated.
Be prepared to respond to the Respondent’s closing submission if necessary, raising counter-arguments and/or highlighting evidence which detracts from the effect of its closing submission.
The decision and remedies of the Tribunal
The Tribunal may take some time to decide the case and to deliver its judgement. If it finds in your favour the remedies open to it are:
- to award you compensation,
- declare your legal rights, or
- make a recommendation that reduces the effect of the discrimination on you.
The most usual remedy ordered by a Tribunal is the payment of compensation. Compensation for discrimination can be composed of 2 elements:
- Injury to Feelings
- Actual financial loss
1. ‘Injury to Feelings’ compensation is payable for the upset, distress and inconvenience caused to you by the discriminatory act. This evidence of your upset will come from you. If there is any medical evidence – for example, psychiatric reports – showing your level of distress as a result of the discrimination you should ensure that these are part of your case as well.
Such compensation is assessed by reference to the following bands:
- £15,000 – £25,000 - most serious cases, such as where there has been a lengthy campaign of discriminatory harassment;
- £5,000 – £15,000 - used for serious cases, which do not merit an award in the highest band;
- £500 - £5,000 - appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence.
These are referred to as the ‘Vento’ bands, after the leading English case in which the English Court of Appeal articulated them.
Injury to feeling awards from the Tribunal have since 2002 been based on the ´Vento´ case (or Vento v Chief Constable of West Yorkshire Police (No. 2)  IRLR 102CA).
The Guidelines had remained unchanged since 2002. However, in the recent case of Da´Bell v NSPCC, the Court of Appeal reviewed and increased the Vento figures to take account of inflation, as follows:
Less serious or isolated incident of discrimination. The upper limit has been increased from £5,000 to £6,000.
Serious cases that do not justfy the higher limit. The upper limit has been increased from £15,000 to £18,000.
The most serious cases of discrimination or lengthy campaign. The upper limit has been increased from £25,000 to £30,000.
Exceptional cases could still attract an award of over £30,000.
This became effective from 1st October 2009 - the date of the Court of Appeal´s decision.
2. Compensation for actual financial loss is provided in order to restore the Claimant to the position s/he would have been in had they not been discriminated against. It is composed of:
- losses incurred between the date of the discriminatory act and the date of the hearing, and
- a sum for any future loss that might be incurred.
Your loss of earnings under heading (a) is the difference between the net pay you received, or would have received, and the sum you actually received calculated on a weekly basis up to the hearing. You must also deduct from this sum any Job-seekers Allowance, Incapacity Benefit or any Income Support received during this time (but you do not deduct any Disability Living Allowance received).
Your loss of earnings under heading (b) is more difficult to predict. A Tribunal will try to assess how long it will be before you will receive the same wage you received, or would have received, if you had not been discriminated against.
Your duty to mitigate your loss
Even if you have been dismissed as a result of unlawful discrimination you still have a duty to try and limit the extent of your loss. You cannot ‘sit back’, as it were, and do nothing simply because you are the one who was badly treated. You have a duty to ‘mitigate your loss’ (i.e. reduce the effect of your loss) by seeking alternative employment. If you don’t, this will affect the amount of compensation that you will be awarded.
Have evidence available for the hearing of any other jobs that you have applied for, or details of your current earnings. Keep copies of job applications, interview letters, rejection letters etc. to show to the Tribunal to demonstrate that you have been trying to mitigate your loss.
Unhappy with the Tribunal´s decision? - Challenging the decision
If you are unhappy with the decision made by the Tribunal there are three options open to you:
- appeal, on a point of law only, to the Court of Appeal, or
- request a review of the decision by the Tribunal, or
- seek judicial review of the Tribunal’s decision in the High Court.
Appeal to the Court of Appeal
You may, with the permission of the Secretary of the OITFET, appeal to the Court of Appeal but on a point of law only. This means that if your concern with the Tribunal’s decision relates to the decisions it made on the facts, those concerns cannot form the basis of the appeal. If, however, you consider that the Tribunal misapplied the law, or otherwise incorrectly interpreted the law you may appeal to the Court of Appeal.
This form of appeal is said to be by way of ´Case Stated´.
You must act within 42 days of the decision by writing to the Secretary of the OITFET explaining the point of law you wish the Court of Appeal to examine.
An appeal by way of case stated is a legally complex matter and you will require expert help. It is also likely to be expensive but legal aid is available should you meet the qualifying criteria.
Review by the Tribunal
You can also require the Tribunal to review its decision, provided you ask it to do so within 14 days of that decision. This is a form of internal review. However, such a review can only be carried out on certain grounds and you cannot secure a review simply because you are unhappy with it. This form of review has been discussed previously in the section explaining a Review Hearing.
You might also be able to have the decision of the Tribunal made the subject of a judicial review action in the High Court, though you will likely be required to have exhausted the other two options first. Any judicial review will focus on the manner in which the case was dealt with and/or with the application of the law by the Tribunal and not on the merits of the claim, or on the issue of which side’s witnesses were more credible, for example.
As with an appeal by way of case stated to the Court of Appeal, this has the potential to be quite expensive and you will require expert legal help. You may qualify for legal aid which is available for judicial review proceedings. Any judicial review needs to be commenced ‘promptly’, but in any event not later than three months from the making of the Tribunal’s decision, so do not hesitate to get specialised legal advice.
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