Employment tribunal hearings
1. A party at a hearing of an appeal against a notice may be represented by any person. The appellant can be represented by solicitor, counsel, or a person who is not legally qualified. You will be represented by a lawyer appointed via Legal Adviser’s Office or your Solicitor Agent.
2. Legal Aid is not available to appellants for Employment Tribunal proceedings.
3. Tribunals are legally required to ensure that the lack of Legal Aid for the proceedings does not infringe the overriding objective and Article 6 of the European Convention on Human Rights. This requires that there should be an "equality of arms" in order to ensure that a party to any proceedings has a fair trial. However the non-availability of Legal Aid has not been held to be an infringement 1.
4. At the hearing either party may:
- give evidence;
- call witnesses;
- question any witnesses called by the other party; and
- address the Tribunal. This may include making an opening and closing submission.
The Tribunal can however place restrictions on either parties input to a hearing.
5. Any opening submission on your behalf should:
- give the main reasons for the decision to serve the improvement or prohibition notice, explaining any technical terms;
- outline the law relating to any alleged breaches and the circumstances in which a notice can be served as these will be matters with which the Tribunal may not be familiar
6. Your witness statement will stand as your evidence in chief unless otherwise ordered. You will therefore routinely only give oral evidence in response to cross examination.
7. You should remain seated when giving evidence or addressing the Tribunal. No transcript of the proceedings will be taken unless the parties arrange to have a shorthand note taken. You should watch the Chairman's pen and not proceed too fast so that a proper note may be taken.
The Order for the Hearing
8. The hearing will normally proceed in the following way:
- The chairman may introduce himself/herself and outline the procedure that s/he is going to adopt and his/her view as to the relevant issues.
- Lawyers.or representatives for both parties may make opening submissions
- The inspector who served the notice should give evidence, be cross examined by the appellant, and re-examined by the person presenting on any matters which require clarification in view of the cross examination.
- Witnesses will be called on behalf of HSE, cross examined and re-examined.
- The appellant will gives evidence, be cross examined, and re-examined.
- The appellant will call witnesses who are cross examined and re-examined.
- Your lawyer may summarise the evidence in favour of the notice and deal with any points made against it.
- The appellant will make closing submissions to the Tribunal.
- The Tribunal will either retire to consider its decision or adjourn to give its decision on another day.
- In Webb v United Kingdom (1983) 33DR 133 the European Commission held that the active intervention of a judge could ensure that all legal and factual issues relevant to an unrepresented person's case have been properly investigated and considered (DR prefers to "Decisions and Reports of the European Commission of Human Rights"). In the case of X v UK 6 EHRR 136 The Commission ruled inadmissible the applicants claim that article 6(1) had been infringed by failing to provide legal aid in relation to proposed proceedings before an Industrial Tribunal saying "[the applicant] could no doubt have brought his case himself, without any legal representation. Industrial Tribunal proceedings are designed to be conducted in a practical and straightforward manner without too much emphasis on formality. Legal representation may be useful, but is by no means a requirement in such proceedings."