Notice of hearing
The Office of the Tribunals will send a Notice of Hearing at least 14 days before the date of the hearing to claimants, respondents and their representatives. A request for a postponement will not be considered unless the party making the request can show a good reason and has attempted to obtain the consent of all other parties to the proceedings.
Every request for a postponement should confirm the consent of such party to postponement or state the objections to it. The tribunal will also consider at that stage how near the request is to the date of hearing and if the date of hearing was agreed by the parties.
What are the different types of hearing?
Case management discussions:
These are held to:
• clarify the issues in the case;
• decide what orders should be made about matters such as documents and witness statements
• decide the time and length of the full hearing.
Case management discussions may be held in private, before an Employment Jusge sitting alone, or may be arranged via a telephone conference link (our normal procedure is that these hearings are held in public).
These are held to:
- decide whether the claim or response should be struck out;
- decide questions of entitlement to bring or defend a claim;
- decide, if either party’s case has no reasonable prospect of success and if so, decide how much of a deposit is to be paid (current maximum of £500), before that party can continue to take part in the proceedings.
The letter giving you the date of the hearing will state the matters to be decided at the pre-hearing review. Unless the pre-hearing review is only to consider whether a deposit should be paid, it may well be necessary for evidence to be given at such a hearing. You must decide which witnesses (if any) and evidence to bring or you may be directed by an Employment Judge to produce witness statements as well as the witnesses who made them. Pre-hearing reviews are normally held in public before an Employment Judge sitting alone and may be held via a telephone conference link if an Employment Judge considers it just and equitable to do so.
This is the hearing that:
- decides whether the claim succeeds or fails and, if it succeeds,
- what remedy is appropriate.
The Hearing will normally be conducted by a full tribunal which includes an Employment Judge and two lay members.
You can apply to the tribunal to ask it to review its decision, orally at hearing or in writing within 14 days of the date the decision was sent by the Office of the Tribunals. (An Employment Judge may extend the time limit for reviewing a decision but only if it is considered just and equitable to do so).
If the grounds for review are established under Rule 34 (3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, the tribunal shall proceed to review its decision and may on such review, affirm, vary or revoke that decision and, if necessary, order a new hearing.
Orders for attendance of witnesses, production of documents, supply of particulars and written answers.
If you wish someone to give evidence on your behalf, you should arrange for them to attend the hearing. If they are unwilling or if there is some other difficulty you should write to the tribunal, at least 10 days in advance of the hearing, asking for an order requiring them to attend.
The claim for a Witness Order should include: -
- the name and address of the witness required;
- the nature of the evidence that he/she can give;
- a statement to the effect that the witness has been approached to attend the Tribunal and has declined.
The tribunal cannot grant an order in respect of a person who is residing outside of Northern Ireland.
Similarly, if you wish the other party to bring certain documents to the hearing, you may ask them to do so. If they refuse, you can apply to the tribunal for an order requiring them to produce the documents. You may also ask the other party to supply additional information about the case or produce documents for your inspection. If they refuse you can apply to the tribunal for an Order requiring them to produce the documents and provide the additional information.
You may also apply to the tribunal for an order imposing a requirement on a party to furnish to the tribunal a written answer to questions.
Requests for Orders from a tribunal for documents, additional information or written answers to questions, must specify the documents, additional information and questions sought.
What will happen at the Hearing?
The parties may give evidence, use statements of their evidence and their witnesses evidence (if an Employment Judge makes a direction to do so) and may question their own witnesses and cross-question those brought by the other party. Each party may address the tribunal. The order in which evidence is given is not fixed and is a matter for the tribunal hearing the case. At the hearing, you may present your case in person or be represented by any person whom you wish to represent you and who has agreed to do so.
If necessary, the tribunal will give guidance on procedure to a party during the hearing. Tribunal members may ask questions of parties or witnesses in order to obtain relevant facts.
If you are neither present nor represented, the tribunal may decide the case in your absence after considering any written representations you have made. The tribunal may dismiss a claim if the claimant fails to attend. The hearing will normally be held in public.
In proceedings where there are allegations of sexual harassment or other sexual misconduct there is provision for the tribunal on the application of a party or at its own discretion, to make an order restricting reporting of the proceedings by the media in a way which would identify the parties. Similar reporting restrictions apply to claims under the Disability Discrimination Act 1995.
The tribunal tries to identify such cases before they are listed. If yours is such a case please contact the tribunal as soon as possible, so that the tribunal can consider whether or not to impose reporting restrictions at the hearing.
A restricted reporting order will specify the persons who may not be identified. The tribunal may revoke the order at any time if it thinks fit, but if it is not revoked earlier, it will cease to apply when the tribunal’s decision on the complaint is sent to the parties.
You may be directed to prepare a witness statement of what you or your witness will tell the tribunal. This direction may be made at a case management discussion at a date before the full hearing. Both you and your witnesses will be required to give evidence on oath or affirmation.
Each party should bring to the hearing all documents on which he or she intends to rely. These documents will vary according to the subject of the claim. Sufficient copies of any such documents should be produced at the hearing for the use of a witness, the other party and the members of the industrial tribunal. Usually five copies are required.
The remedy sought from the industrial tribunal
Where an industrial tribunal finds that the claimant has been unfairly dismissed, it must consider whether to make an order for re-instatement in the previous job or re-engagement in another job, if the claimant wants either of these remedies. Both parties should therefore be prepared to give evidence as to whether re-instatement or re-engagement would be practicable. Respondents should bear in mind that they may have to pay the costs of any postponement or adjournment of an industrial tribunal hearing due to their failure, without a special reason, to provide reasonable evidence about the continuing availability of the claimant’s previous job.
Respondents may also have to pay the costs of a postponement or adjournment in similar circumstances where a woman has succeeded in her complaint against her employer’s refusal to allow her to return to work after she has been away from work due to pregnancy or confinement.
If, as an alternative to re-instatement or re-engagement, an industrial tribunal awards compensation, this will include loss arising as a result of the dismissal. It is the claimant’s duty to reduce their loss as much as possible, for example, by making adequate efforts to get another job. The claimant should be ready to give evidence about what he or she has done to reduce such losses.
In cases of discrimination where a tribunal has found in a claimant’s favour, it may award a sum for injury to feelings as well as loss. The claimant would be required to produce medical evidence to support any claim that they have been attending a doctor or hospital.
Recoupment of Jobseekers Allowance and Income Support
If a claimant has been in receipt of the above benefit(s) some or all of that benefit may have to be repaid to the appropriate government department by the respondent from any compensation awarded. Where appropriate, the tribunal will send a form which is part of the decision to the parties about this.
Award of costs or expenses
Each party at a hearing should meet their own expenses to the extent that they are not payable out of public funds (see Allowances for attending the Tribunal). You will not have to pay any of the other party’s costs merely because you lose your case. However the tribunal may order you to pay all or part of the costs of the other party if it decides that you have acted abusively, vexatiously or otherwise unreasonably or the bringing or conducting of the proceedings by the paying party has been misconceived. An award of costs may follow a warning given at a pre-hearing review or if you fail to comply with an Order or Practice Direction. The tribunal may also order you to make a payment to the other party if he or she suffers loss because a hearing is postponed or adjourned at your request because of some action or failure on your part. A request should be made to the tribunal if you wish it to consider making an order for costs.
A Preparation Time Order
This order is made by a tribunal or chairman for a ‘paying party’ to make a payment for the preparation time of the ‘receiving party’. It applies when the receiving party is not legally represented and is for preparation time not time spent at the hearing. You must apply in writing to the Secretary of the Tribunals no later than 28 days from the issuing of the decision. The Employment Judge will need to know information on the time spent by the receiving party and will also consider the paying party’s ability to pay, and can make his/her own assessment of what is a reasonable amount of time.
The Tribunal decision - what happens next?
At the end of the hearing an Employment Judge or tribunal shall either issue their decision orally or reserve the decision to be given in writing at a later date. Where oral reasons have been given, written reasons will only be provided if one of the parties asks for them at the hearing or within 14 days of the date that the decision is sent to them (this time limit may be extended by an Employment Judge where he considers it just and equitable to do so).
Review of a tribunal’s decision
In certain circumstances an industrial tribunal may review its decision and affirm, change or revoke it. These circumstances are:
- the decision was wrongly made as a result of an administrative error; or
- that a party did not receive a notice of the proceedings leading to the decision; or
- that the decision was made in the absence of a party; or
- that since the decision was made new evidence had become available and the existence of that evidence could not have been reasonably known or foreseen at that time; or
- that the interests of justice require such a review.
An industrial tribunal will not review its decision merely because a party disagrees with that decision. If proper ground(s) is/are established, an industrial tribunal shall proceed to review its decision and it may on such a review, affirm, vary or revoke its decision and if necessary order a new hearing. If you think you have grounds for asking for the decision to be reviewed you may apply to the industrial tribunal at the hearing immediately after the decision has been given. Alternatively you may send a written request for a review to the Office of the Tribunals stating your reasons in full. This request should reach the Office of the Tribunals not later than 14 days after the date (as shown on the copy of the decision) on which the Industrial Tribunal’s decision was sent to you.
Review of default judgements
A party may apply to have a default judgement reviewed. This must be done within 14 days of the date on which the default judgement was sent to the parties. The application to review must give reasons for the review, as well as the respondent’s proposed response, an application for an extension of the time limit for presenting the response and reason(s) why the time limits were not complied with. An Employment Judge will review the decision in public and may:-
(a) refuse the application to review
(b) vary the default judgement
(c) revoke all or part of the default judgement: or
(d) confirm the default judgement
You have the right of appeal to the Court of Appeal against the Tribunal’s decision on a point of law only. It may be in your interests to consult a legal adviser before instituting an appeal against the Tribunal’s decision.. Any application to extend the time limit can only be granted by the Court of Appeal.