Going to tribunal: frequently asked questions

Sarah-Marie Williams of Clyde & Co continues a series of articles on going to tribunal with some frequently asked questions.

When will an employer first become aware that an employee or former employee has commenced proceedings against it?

Usually an employer becomes aware that proceedings have been commenced against it only when it receives a letter from the employment tribunal explaining how to present any defence to the claim, with a copy of the claim form (form ET1) enclosed.

In what circumstances will the tribunal automatically refuse to accept a defence?

A tribunal will normallyrefuse to accept a defence if the employer has not submitted it within the time limit of 28 days, or it is not set out on the prescribed form (form ET3), or the form is not fully completed.

Is it possible to apply for an extended time limit for presenting the defence?

Yes, it is possible to apply to the tribunal for an extension of time to serve the ET3. The application must be in writing, it must set out the case number, why it is not possible to comply with the 28-day time limit, and the reasons for the request.

What are the consequences of not presenting the defence within the time limit or not requesting an extension of time?

In such circumstances, the tribunal will be entitled to issue a default judgment. This means that the employer (subject to some limited exceptions) will be prevented from taking any further part in the proceedings. The employer is, however, entitled to receive a copy of any judgment disposing of the claim.

What is the difference between a tribunal chair and an employment judge?

There is no difference between a tribunal chair and an employment judge. The Tribunals, Courts and Enforcement Act 2007 renamed tribunal chairs 'employment judges' from 1 December 2007.

What is the purpose of the questionnaire procedure in discrimination and equal pay cases?

A questionnaire may be used in discrimination and equal pay casesas a means of asking questions about the reasons for specific acts or treatment or any matter that individuals consider relevant to their claim or potential claim. The questionnaire may be served on an employer either before or after a claim form has been lodged in the tribunal. Answers to the questions, which are then used as evidence in the tribunal, must be given within eight weeks from the date of service of the questionnaire.

What are further and better particulars?

This refers to a procedure whereby a party to a claim asks questions or requests additional information about the other party's claim or defence. It is common practice to refer to statements in the ET1or ET3 and to ask particular questions about them. If one party does not respond to a request for further and better particulars within a reasonable period (usually seven or 14 days) the other party may apply to the tribunal for an order that a response be provided.

What happens after the claim form (ET1) and the defence form (ET3) have been lodged at the tribunal?

Once the ET1 and the ET3 have been received by the tribunal, the next step, in most cases, is for the employment judge to review the file and direct the parties to attend a case management discussion, which is held by an employment judge sitting alone.

What is the purpose of a case management discussion?

A case management discussion enables an employment judgeto manage the progression of a case. It is an opportunity to identify the issues between the parties at an early stage in the process to establish whether there are any preliminary matters to be determined. The employment judge will look at whether a request for further and better particulars has been served and whether there are any replies outstanding. The employment judge will also address whether expert evidence is required. He or she may give any necessary orders and will set out a timetable of steps for both parties to take in preparation for the hearing. This will usually include the disclosure and inspection of documents, provision of a schedule of loss, exchange of witness statements and preparation of the trial bundle. The length of the hearing, availability of witnesses and the hearing date will also be discussed.

Where is a case management discussion held?

A case management discussion is usually held at the tribunal office but may be conducted by telephone conference call.

Can a hearing date be changed?

Once a hearing date has been set at a case management discussion, a party will need a very good reason (for example unforeseen circumstances) for the tribunal to change the date. It is important to ascertain the availability of all witnesses or potential witnesses before attending a case management discussion.

What happens at the disclosure stage of the proceedings?

Disclosure is when the parties to a case are required to provide the other party or parties with a list of the documents in their possession or control that are relevant to the case. Once lists of documents have been exchanged, all parties have the right to inspect the documents referred to on the lists of the other party or parties. Alternatively, copies may be requested.

How is witness evidence dealt with by the tribunal?

Witness evidence in the tribunal is provided in the form of written statements, which are exchanged between the parties before the hearing. Such statements should contain all of the evidence that a witness will give at the hearing. Supplemental statements may also be provided where a response to the other party's witness evidence is required. At the hearing, witnesses are required to read their statements out loud to the tribunal, before responding to any questions put to them.

When does a tribunal give its judgment?

The tribunal's judgment may be given orally at the end of the hearing, or it may be reserved, and a written judgment issued after the hearing. The tribunal's judgment will include reasons, which, again, can be given orally at the time of the hearing, or reserved, to be given in writing at a later date.

Are costs in the tribunal paid by the unsuccessful party?

The general practice is for each party to bear its own costs. However, a tribunal may exercise its discretion to order one party to pay the other in appropriate circumstances, for example where one party or its representative has, in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably.

The next topic of the week article will be checklist on going to tribunal and will be published on 4 February.

Sarah-Marie Williams is a solicitor in the employment team at Clyde & Co (sarah-marie.williams@clydeco.com)

Further information on Clyde & Co can be accessed at www.clydeco.com