Employment Tribunal isn’t like the telly - here are 7 differences that may surprise you
Content / trigger warning
When you consider taking your employer to Tribunal, it’s hard to know what to expect - will it be like Judge Rinder, Suits, or Better Call Saul? Will you need to stand up and defend yourself? In reality, the Employment Tribunal is a specialist court with its own rules and procedures. It’s similar to other courts, but there are key differences that are worth knowing about.
It’s more than just a “day in court”
If you watch TV programmes about lawyers, you’ll probably find that most of the action concentrates on the trial. However, the reality of a Tribunal is that there is usually months of organisation and documentation work before a case gets to that stage.
The Tribunal will give you lots of deadlines to comply with over the few months before the Final Hearing, such as preparing your Schedule of Loss, doing disclosure, agreeing the Hearing Bundle, and exchanging witness statements.
This is a good thing, as it means you’re as well prepared as possible when the Final Hearing comes along.
Treating your case like a project, and taking ownership of deadlines, documents, and tasks is incredibly important. Read more about how to manage your case like a lawyer here.
There’s no DNA evidence, but there are witnesses
Unlike in criminal law or in a lot of crime dramas, you generally won’t find forensic techniques like DNA or chemical analysis being used as evidence in an Employment Tribunal.
However, that doesn’t mean that evidence isn’t important. Having strong evidence is still how you win your Tribunal case. The difference is that the evidence is usually just limited to two things: documentary evidence and witness evidence.
Documentary evidence at Tribunal
In a Tribunal case, the parties will be asked to prepare a joint Hearing Bundle, which is a folder containing all of the documents that they are relying upon or which are relevant to the case.
For an in-person hearing, this often takes the form of a lever arch folder (or several lever arch folders) with an index at the front and numbered pages. The evidence is usually contained in chronological order, often in categories. For a remote hearing, the bundle is often in electronic form instead, but will still have an index and numbered pages.
You’ll probably find that a lot of the evidence in the average Employment Tribunal case consists of emails (or other communications like letters or WhatsApp messages).
Don’t worry - the Respondent (usually your employer) will normally be asked to do the majority of the work in preparing the Hearing Bundle. However, before the Hearing Bundle is prepared you’ll be asked to send them your evidence documents. You’ll also need to agree the content of the Hearing Bundle, which gives you a chance to check that everything relevant is in there.
Witness evidence at Tribunal
The Respondent will usually have at least one witness, but often three or four. They can choose who they want to act as their witnesses. For example, in an unfair dismissal claim where the employer says the reason for dismissal was misconduct, they would be likely to ask the disciplinary manager to give evidence.
The chances are that it will be more difficult for you to get witnesses to support your side. The witnesses who you would be asking may still be employees of the company, so they may be worried that giving evidence against their own employer puts them in an awkward position. However, if you can get witnesses who will support your case, definitely speak to them and see if they’d be prepared to give evidence.
You might also find that in some cases, it’s necessary to get expert evidence. Often this would take the form of a medical expert - for example, in a disability discrimination claim to help decide the issue of whether you were disabled or not.
Nobody goes to jail - but there are “remedies”
It’s not a criminal court, so a successful result won’t send your employer to jail - though you could cause them considerable reputational damage as well as costing them money.
It’s important to understand the different remedies that you can get in the Employment Tribunal.
Before you make a claim, make sure you understand what outcomes you might be able to get. Use the ‘Goal’ page in the Valla platform to help you understand this.
Nobody wears wigs, and there’s no jury
An Employment Tribunal hearing is arguably less formal than what you might have seen on the telly. An obvious example is that there’s never a jury in an Employment Tribunal case, like there is in a criminal trial.
Having said that, a Tribunal hearing still has a lot of features that make it similar to other courts and what you’ve seen on TV.
For example, although there isn’t a jury, there’s always a Judge, and depending on the type of case, there might also be two panel members.
The physical layout of the Tribunal hearing room is also similar. At the front of the room will be the Judge, who sits at a bench. If there are panel members, they will sit either side of the Judge. Facing the bench will be the tables for the Respondent and the Claimant, one on each side. If you have a lawyer or representative, you can both sit at the Claimant’s table.
To the Judge’s left will be the witness table. This is where the witnesses will come up, one by one, and give their evidence. The Judge will ask them to swear an oath, or affirm, before giving their evidence.
At the back of the room sits anyone else who has come to the hearing, such as anyone from the Respondent who has come to watch, or any of your friends or family members.
Of course, the Covid-19 pandemic has changed everything and the Tribunal is no exception. A lot of hearings still run remotely - most Case Management Preliminary Hearings and some Final Hearings too. However, the Tribunal has gone back to running some hearings in person or on a hybrid basis, as long as both sides are comfortable with this. Also, a lot of the same formalities remain, even if the hearing is run remotely.
There’s no “guilty” verdict
In a courtroom drama, often there will be a dramatic moment when the jury foreperson states the “guilty” verdict. However, unlike in criminal cases, there’s no “guilty” or “not guilty” in employment law.
The Tribunal still has to decide whether each of the laws you are claiming about have been broken or not. However, they would use the language of a claim being “successful” if you win - otherwise, they would say that a claim “fails” or “does not succeed”.
However, it’s not just the language that differs. It’s important to understand the concept of the standard of proof. In criminal law, the standard of proof is “beyond reasonable doubt”. This means that the jury must be persuaded so that they are sure of someone’s guilt, before they can return a guilty verdict.
The Employment Tribunal is different. It has the same standard of proof used for other civil cases - “the balance of probabilities”. This is a lower standard than in the criminal courts. It means that the Judge/panel needs to decide whether something was "more likely than not".
You might not get a result straight away
You’ve probably heard of juries in criminal trials deliberating for several hours (in some cases, days).
But a lot of the time, they tend to come back fairly quickly and the defendant’s fate is decided on the same day.
At the Employment Tribunal, although sometimes you will find out the outcome at the end of the Final Hearing, things don’t always happen that quickly.
If the Judge gives you the result at the end of the Final Hearing, they will usually send everyone out of the room for a break whilst they think about it, and then tell you to come back at a certain time so they can give you their decision. If it’s a more complex case or if there isn’t time to give you a result on the day, they will tell you that they will send the judgment in writing at a later date. This is sometimes called a “reserved judgment”.
If you are successful, the Tribunal will often be able to determine what outcome you should get (for example, how much compensation) at the same time as giving their judgment. However, a lot of the time they will instead schedule another hearing to decide this, called the Remedy Hearing.
It doesn’t have to cost a fortune
Although not all lawyers live the expensive lifestyle you’ve seen on Suits or The Split, it’s definitely true that lawyers can be pricey.
At Valla, we want you to feel like you are in control of the financial aspects of running your case. It’s incredibly helpful to have a lawyer, if you can afford it - even to help with part of your case, like drafting your ET1 claim form or representing you at a hearing. You can use the Valla platform’s ‘Share Case’ feature to share the work you’ve done on your case with a lawyer or legal advisor.
But if you can’t afford a lawyer, don’t worry. A lot of people are in exactly this position, and the Employment Tribunal judges know this. At any hearings you go to, they will take into account that you aren’t represented. Of course, the Tribunal needs to be impartial, but they should check your understanding and help with any questions as you go along.
Claimants who represent themselves are sometimes called a “litigant in person” (in England and Wales) or “party litigant” (in Scotland).
You don’t have to do it alone
If you’re thinking about making an Employment Tribunal claim, you can use Valla to run all aspects of your case.
Valla puts you in control of your case, and lets you manage it from end to end, working towards the outcome you want.
Once you’ve signed up, our friendly team is ready to guide you should you need it. Sign up for your free, secure account here.