Employment Tribunals

2. Before the Hearing

When an application is made against you, it is the preparation you do before the hearing that is most likely to determine the outcome.

2.1 Check first to see whether the application is technically flawed.

• For example, in unfair dismissal cases, the applicant must have a year's service, except where discrimination or inadmissable reasons are involved (see Dismissing employees).
• The claim must be made within three months of the date of termination - except where the applicant thinks the matter is being dealt with internally, or in rare cases, at the tribunal's discretion.

2.2 Investigate the issue again, to make sure of your ground before getting into a fight.

• The manager responsible may have been misleading you.

2.3 Resolve the claim amicably, or settle (see 6), if it arose from a genuine misunderstanding.

• For example, explain the reasons why an expected promotion was not given.

2.4 If you think the claim is almost certain to fail, request a pre-hearing review.

• The tribunal will look at relevant documents (but not hear witnesses).

2.5 If you go ahead to a hearing, be clear about the costs and benefits of fighting the case.

• Even a fairly straightforward case can drag on for months.
• The cost in disruption and management time can be considerable. A case can also damage the credibility of your business.
• Some cases are worth defending to signal your resolve to other employees.

2.6 Prepare a realistic case strategy, based on your strengths.

2.7 Prepare evidence to show the background to the case and to prove what happened.

• General evidence provides the background - contracts of employment, employee handbooks and your HR policy statements.
• Specific evidence relates to the case itself.

2.8 As part of your preparation for the hearing, you can seek further particulars of the claim from the other side.

For example, are there any further allegations that will be made against you?

• If you need more information, ask for it. If it is not handed over, write to the tribunal to make your request, compelling the applicant to give you the information.
• You must respond reasonably to requests for information from the other side. If you are on the receiving end of a request that you think is silly or goes too far, ask the tribunal to vary it.

2.9 You will usually need to exchange documents in advance of the hearing.

• You must prepare witness statements beforehand (see 3) and agree a 'bundle' of relevant papers with the other side.
• Witness statements and the bundle (good photocopies, with the pages numbered) must be handed over. You will need at least six copies, one each for the three members of the tribunal, both parties and the witness.