A tribunal hearing is different to a hearing before a criminal court. However the Tribunal has a number of powers which may assist you in preparing your case. These powers will be exercised in accordance with the "overriding objective" to deal with the cases justly. This objective includes1:
ensuring that the parties are on an equal footing;
saving expense; and
dealing with the case in ways which are proportionate to its complexity, expeditiously and fairly.
The nature of the overriding objective gives tribunals a wide discretion in how they conduct their proceedings. However, that discretion is subject to the actual powers that the Tribunal enjoys under the relevant Rules (see the section Jurisdiction of the Tribunal).
Details of the grounds for appeal
The Notice of Appeal should set out the details or “particulars” of the requirement appealed against, together with the grounds of appeal. If you believe that the grounds of appeal are not sufficiently clear you can notify the appellant that you wish to have further particulars of those grounds on which s/he relies and of any facts and contentions which are relevant. If you do not receive an adequate reply you can apply to the Tribunal for an Order to be made:
To require a party to provide additional information2; or
You need to know the nature of the case you are required to meet;
it prevents you from being taken by surprise;
it enables you to prepare the necessary evidence;
it defines the relevant issues between the parties, which in turn can determine the scope of disclosure4, (i.e. the disclosure of details, documents or statements which may assist either party).
The tribunal can only make such an Order on the application of a party to the appeal. This means that the appellant can also seek an Order to disclose the grounds of your defence to a notice.
Disclosure of documents
You may wish to see a copy of or inspect the documents upon which the appellant intends to rely. You should first request disclosure from the appellant or anyone who has documents. However if you do not receive a satisfactory reply you can make an application to obtain an Order for disclosure.
The Tribunal has the same powers as the County Court to order either party to make disclosure.5 The County Court’s powers are now set out in the Civil Procedure Rules 1998. Rule 31 (in particular Rule 31.6) deals with disclosure. Standard disclosure includes documents on which a party relies and documents which adversely affect its own or another party’s case or support another party’s case. Civil Procedure Rule 31.15 deals with the right to inspect documents.
In addition to the above, Civil Procedure Rule 31.12 deals with specific disclosure of documents which may be ordered where you can identify specific documents which are required to ensure a fair hearing.
There may be circumstances where someone who is not a party to the appeal holds documents which are required, e.g. notices may have been served on several contractors but only one of them may have appealed and documents may be held by others. Usually this type of document will be obtained by the inspector using his/her powers under section 20 HSWA. However, if documents are held by those against whom it would be unreasonable for you to exercise your powers, you may need to rely on Civil Procedure Rule 31.17 which allows for an Order for disclosure against a person who is not a party to proceedings. Disclosure under this provision is limited to specific documents and you will need evidence to support the application. You should refer to Legal Adviser’s Office for advice via your legal liaison point.
However neither party will be able to obtain any documents from the other that are protected by legal professional privilege. The test for legal professional privilege is whether the communication/document was created for the purpose of obtaining or giving legal advice6. See the section Investigation – Collecting Physical Evidence – Obtaining Evidence Using Section 20 Powers for more guidance on legal professional privilege.
It is usual for parties to an appeal to agree directions for disclosure between the parties if there are particular issues arising from the Notice of Appeal. Most Tribunals, following an application from either party, will issue standard Directions for the mutual exchange of witness statements and documents. Disclosure will not be ordered by the Tribunal if it considers that:
such an Order would be oppressive; or
the documents are irrelevant; or
it is unnecessary for the fair disposal of the appeal.
It may be unnecessary for documents to be disclosed where the essential facts can be agreed. Where documents are regarded as confidential, and disclosure is sought by the appellant, you should seek advice from Legal Adviser’s Office.
If you wish to rely on the evidence of a witness, including yourself, you should record that evidence in the form of a statement. The Tribunal is a civil jurisdiction and therefore the strict requirements of section 9 of the Criminal Justice Act 1967 (LP70) do not apply. Witness statements can be taken on any form but they must contain a statement of truth.
Your statement in support of the notice should give the reasons for the decision to serve it. You should
explain to the Tribunal that you have a wide discretion in deciding appropriate action; and
seek to persuade the Tribunal that it should not substitute its judgment for yours.
The information contained in the Notice of Appeal and any further particulars should enable you to restrict the witnesses you will require. It may be that specific facts can be agreed with the appellant. In particular it should not be necessary to prove formal matters such as employment, which are likely to be capable of agreement in correspondence before the full hearing of the appeal.
Witness attendance
It is preferable if any witness who you wish to call in support of your case agrees to attend the Tribunal hearing voluntarily. However the Tribunal may require the attendance of any person as a witness7. If you need to require a person to attend as a witness an application should be made to the Secretary of the Tribunal as early as possible. You will need to satisfy a chairman that the witness will not attend voluntarily, e.g. the witness has been seen, a statement taken, and refuses to attend. You will be responsible for serving the Order on the witness. You should consider applying for such an Order where you require an employee of the appellant to attend, as this may avoid difficulties with the employment relationship.
Cases may be listed for hearing within a few weeks so details of the availability of witnesses should be obtained at an early stage. It is also important to ensure that the case is not given an inadequate time estimate or at a time when you or witnesses are not available. You should therefore inform the Tribunal of the dates to avoid and your time estimate at an early stage and seek a fixed date for the hearing. It may be necessary to write to the Tribunal to ask that the hearing is not listed until both parties have supplied a time estimate and the dates to avoid for its witnesses.
You will need to consider whether it is important for the case to be heard in one hearing. As Enforcement Notices usually involve the consideration of issues that are unfamiliar to the Tribunal, it is usual to ask for the hearing to take place on consecutive dates, if more than one day is required. It may be possible to agree a date with the appellant if the Tribunal will indicate the period during which the case is likely to be listed. If you are still waiting for the dates to avoid from your witnesses or you require further time to prepare it may be necessary to ask the Tribunal not to list the case until you have supplied your dates. Unless both parties agree, you must be given at least 14 days notice of the hearing.8
Witness expenses
The expenses of witnesses should be reimbursed and conduct money provided in appropriate cases. Receipts should be obtained and the amount reimbursed should cover fares, subsistence, and any loss of wages. If it appears that the amount claimed is excessive, an inspector should insist upon proof of loss before making payment. Expenses should be dealt with on form HSE A/CS 509, which should be amended to refer to an Employment Tribunal appeal.
Written representations may be submitted to the Tribunal9. Those representations must be lodged with the Tribunal not less than 7 days before the hearing and at the same time to be copied to any other party. The meaning of "written representations" is imprecise but it has been held to cover anything said on the appeal form or any response to it.
A Tribunal should not dismiss a case without considering such written representations. They also have to be considered if either party does not turn up. If the Tribunal decides that further inquiry should be made as to the reasons for non-attendance then the matter will be adjourned.
Statements of witnesses are not regarded as written representations but the Tribunal has a discretion to admit in the absence of attendance. However if there is a conflict in relation to the evidence contained in the statements they are likely to carry little weight.
Service of bundles of documents
Tribunals do not usually have a system for receiving papers prior to the hearing. As a result papers should only be submitted where the Tribunal has requested their submission in advance of the hearing.
However you should seek to agree a bundle prior to the hearing, preferably at least a week in advance. The Tribunal may make directions to this effect, although it may not always be possible to agree with your opponent what should be in the bundle.
It is advisable for your bundle to be divided between two files. One file should include all the statements upon which you rely; the other file should hold the documents, any statutory provisions and decided cases on which you intend to rely. There should be an index to each part of the bundle. You will need seven copies of the bundle:
three copies for the Tribunal;
a copy for the witness who is giving evidence;
a copy for the appellant;
a copy for the inspector who is conducting the case;
a copy for any HSE witness who is sitting behind that inspector (this may be of assistance to any expert witness).
Some Tribunals also request a copy to be left at the back of the Tribunal room during the course of the hearing.
The Tribunal will require any technical matter to be explained to them. Therefore any technical and advisory literature together with presentational aids such as videos, sketches, and simplified schematics should be put before the Tribunal at the hearing of the appeal. The Tribunal may also decide to visit the premises concerned.
The decisions of Employments Tribunals may be used to "persuade" other Tribunals on the correct approach to adopt, but they are not binding. Some decisions may be reported and there are two current series of reports which specialize in employment matters:
Industrial Relations Law Reports (IRLR); and
Industrial Cases Reports (ICR).
There are also older series of reports, Industrial Tribunal Reports (ITR) and Knights Industrial Reports (KIR).
Copies of unreported Tribunal decisions may be obtained from the Employment Tribunal Office at 100 Southgate Street, Bury St Edmunds, IP33 2AQ, or via the Inquiry line ( 0845 795 9775). The Secretary to the Tribunal is required to maintain a register of appeals and decisions10.
Footnotes
Regulation 3 (2) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004
Rule 10(2)(b) Employment Tribunals Rules of Procedure 2004
Rule 10(2)(d) Employment Tribunals Rules of Procedure 2004
C White v University of Manchester [1976] ICR 419
Rule 10(2)(d) Employment Tribunals Rules of Procedure 2004
Alfred Crompton Amusement Machines Ltd - v - Commissioners of Customs and Excise (2) [1973] 2 All ER 1169H L
Rule 10(2)(c) Employment Tribunals Rules of Procedure 2004
Rule 14(4) Employment Tribunals Rules of Procedure 2004 (Schedule 1)
Rule 14(5) Employment Tribunals Rules of Procedure
Rule 32 Employment Tribunals Rules of Procedure 2004
