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. If you require the assistance of an advocate then you must obtain a nomination for an authorised advocate from the Legal Adviser’s Office.
2. Legal Aid is not available to appellants for Employment Tribunal proceedings. It is however available for preliminary advice and assistance and for any appeal from an Employment Tribunal by an individual, although it is not available to companies.
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 2. This may include making an Opening Statement.
5. Any opening statement by/on behalf of the Inspector should:
- give the main reasons for the decision to serve the improvement or prohibition notice, explaining any technical terms;
- say which witnesses and documents will be before the Tribunal and the purpose of such evidence.
6. The opening statement should also 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 will not be familiar.
7. You should remain seated when 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. In the case of written statements, the statement is usually read by the witness who made it. Questions are only asked by examination-in-chief to clarify or emphasize certain points.
The Order for the Hearing
8. Traditionally, an Appellant's case would be heard first as it is his/her appeal. However the matters usually in issue are not whether it was possible to take reasonably practicable steps but the reasonableness of the decision to issue a notice. The inspector will therefore be required to give evidence on the known facts at the time the decision was made. The case is likely to proceed better if all matters relating to the notice are first put before the Tribunal.
9. The hearing will therefore 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.
- You or your representative should outline the brief facts of the case.
- 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 are called on behalf of HSE, cross examined and re-examined.
- The Appellant opens his/her case by briefly outlining the facts on which the appeal is based.
- The Appellant gives evidence, is cross examined, and re-examined.
- The Appellant calls witnesses who are cross examined and re-examined.
- The person presenting addresses the tribunal, summarises the evidence in favour of the notice and deals with any points made against it.
- The Appellant addresses the Tribunal.
- The Tribunal either retires to consider its decision or adjourns 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."
- Rule 27 (2) Employment Tribunals Rules of Procedure 2004