The Final Hearing

The Final Hearing

The 3 Types Of Hearings

 
    1. A Case Management Preliminary Hearing: (“CMPH”). The purpose of a CMPH is to address procedural issues and to make case management orders.
       
    2. A Preliminary Hearing: The purpose of that type of hearing is to decide some particular issue/s (but not all the issues) in the case. (For example, if there is a dispute on that matter, a preliminary hearing might be held to decide whether your claim has been brought within the relevant time limits.)
       
    3. The Final Hearing: (which is referred to below as “the Final Hearing”). The purpose of the Final Hearing is to decide all of the liability and remedy issues in the case.

Focus and Limits of This Document

The guidance in this document is focused on what needs to be done in advance of, and during, the Final Hearing.

A separate document provides guidance in relation to participation in a CMPH.

It should not be assumed that this document contains a complete, and entirely accurate, or entirely up-to-date statement of all of the relevant legal principles and procedures.

The following information does not constitute legal advice; this document provides general
guidance only.

Preparing for the Final Hearing

The employment tribunal will consider all the evidence (documentary evidence and evidence of witnesses) which is made available to it during the Final Hearing. When preparing for the Final Hearing you should consider doing the following:

You should carefully read all of the following documents:

  • The documents you will be bringing to the attention of the tribunal
  • The documents the respondent(s) will be bringing to the attention of the tribunal.

You should make a note of each of the documents that you will want to draw to the attention of the tribunal. In particular, you should note the page numbers (in the bundle) of each of those documents.

During the Final Hearing, you will have the opportunity to question each of the respondent’s witnesses.

You Should Read:

1.

Your Witness Statement is an important part of your evidence. It is, therefore, important that you familiarise yourself with your Witness Statement. If, during the course of your Witness Statement, you refer to a document which is contained in the Bundle, you should carefully note the page number (in the Bundle) of that document.

2.

You may be the only witness on your side of the case. However, if there are one or more
other witnesses giving evidence on your behalf (referred to in this document as ‘other
witnesses’), you should make sure that you are familiar with the Witness Statements of each,
or any, of those other witnesses.

3.

You should carefully read the Witness Statement of each of the witnesses on the respondent’s side of the case.

Separately, in respect of each of those Witness Statements, you should take the following steps:

  • Identify any matters or assertions in that Witness Statement which you will wish to challenge during cross-examination.
  •  Use that note as a reminder, when you are cross-examining that witness.
Checklist for The Final Hearing

Check that you have everything with you for The Final Hearing

On the day of The Final Hearing , you should make sure that you have all of the following:

  •    A copy of the bundle
  •    A copy of your own Witness Statement
  •    A copy of the Witness Statement/s of any or all of your other witness/witnesses.
  •    A copy of the Witness Statement of each of your Respondant's witnesses
  •    Lists of the questions that you wish to ask each of the witnesses on your respondent’s side of the case.
  •    Your chronology of events
  •    Details of how much compensation you want, and an explanation as to how that sum has been calculated.
Find out what legal principles apply to your case

In advance of the Final Hearing, in respect of each of your claims, you should carry out research on the following:

  • The legal principles that apply in the context of that claim.
  • The facts which you will need to prove, for the purpose of
    winning that case.

If there was a Case Management Preliminary Hearing (‘CMPH’) in your case, an employment judge will have probably identified the principal factual and legal issues in your case; that will give you an idea as to what you need to prove.

How your Other Witness/Witnesses should prepare for the Final Hearing

You should ask each of the other witnesses to read all of the following documents:

  • Their own Witness Statement
  • Your Witness Statement
  • The Witness Statements of each (if any) of the other witness/witnesses
  • The Witness Statements of all of the witnesses who will be giving evidence on behalfof the Respondent

The Day of the Final Hearing

You should aim to arrive at the tribunal building at least 30 minutes prior to the Final Hearing.

When you arrive at the building, you should go straight to reception so that a tribunal clerk can be made aware that you have arrived.

Dressing for The Final Hearing

There is no particular dress code, however, you should make yourself look presentable.

Bringing someone for support

If you feel anxious or nervous about the Final Hearing, it would be a good idea to bring a friend or family member with you for support. They will be able to sit alongside you in the tribunal room.

This will allow you to talk things over with the friend or family member, as well as seek reassurance.

Bringing someone to take notes

Even if you are not nervous or anxious, it will be useful to bring a friend or family member with you so that person can take notes of what is said and done during the course of the Final Hearing.

Q&A-Final Hearing

Who will conduct the Final Hearing?

The Final Hearing will usually be conducted by a full tribunal. A full tribunal will consist of three members: an employment judge, and two other members of the tribunal.

Who will I be speaking to?

Both in your role as a witness, and in your role as the personal litigant, you may be asked questions by any member of the tribunal. However, you will find that, most of the time;

  • You will mainly be speaking to the employment judge.
  • Most of the questions will be asked by the employment judge.
How do I address the employment judge and the other members of the tribunal?

For each member of the tribunal (both the employment judge and other members), the proper title is ‘sir’ or ‘madam’, if you need to call them anything at all.

Will I be required to stand up at any point during the Final Hearing?

You won’t have to stand up except in three situations:

  • When the members of the tribunal are entering the room
  • When the members of the tribunal are leaving the room
  • When you are making your oath or affirmation

In particular, you are not required to stand up when you are giving evidence, or when you are speaking to the tribunal.

‘On oath’ or ‘affirmation’?

If you are a witness at the Final Hearing, you will be required to give your evidence either ‘on oath’
or ‘affirmation’.

The Process

In an unfair dismissal case, the evidence on the respondent’s side of the case will be heard first, and the evidence on your side of the case will be heard after that.

In nearly all other types of cases, the evidence on your side of the case will be heard first, and the evidence on the
respondent’s side of the case will be heard after that.

You and Your Other Witness/Witnesses

In relation to each of the witnesses on your side of the case (including yourself, in your capacity as a witness), the process is as follows:

The witness will be asked to confirm that his/her Witness Statement is factually accurate.

1.

The respondent’s representative will then cross-examine that witness. During cross examination, that representative can ask ‘leading’ questions.

2.

The third phase is re-examination. During that phase, the following applies:

3.

The Respondents Witness/Witnesses

In relation to each of your respondent’s witnesses, the process will be as follows:

The witness will be asked to confirm that his/her Witness Statement is factually accurate.

1.

You will then cross-examine that witness. During that phase, you can ask leading questions.

2.

The third phase is re-examination.

3.

Cross Examination

During cross-examination of a witness, he/she is asked questions by:
  • The Claimant, if he/she is a witness for the claimant’s respondent or
  • By The Respondent’s representative, if he/she, is the claimant, or is a witness for the claimant.
The cross-examination of a witness can address:
  • Any matter which that witness is able to deal with in relation to the disputed issues in the case
  • Any matter relating to that witness’s credibility.

In your capacity as a witness on your side of the case, you will be cross-examined by your respondent’s representative.

Any other witness’ on your side of the case will also be cross-examined by your
respondent’s representative.

NOTE:

Your Role As Cross-Examiner

There are two things you should be trying to achieve in your role as cross examiner:

You will try to get the witness to give evidence that will support your case,and/or weaken your respondent’s case.

1.

The second purpose of cross examination is to undermine the parts of the witness’s evidence that harm your case, by demonstrating that that evidence is careless, mistaken or untruthful.

2.

The overall aim of cross-examination is to persuade the tribunal to find in your favour.


Therefore, it is important, in advance of the Final Hearing, to carefully read through the Witness Statements of all of the witnesses who are giving evidence on your respondent’s side of the case.

When you read the Witness Statement of any of those witnesses, you should be on the lookout for anything that undermines the respondents’ case, or which supports your own case.

Here are some top tips for you in your capacity as a cross-examiner:

  • Ask one question at a time
  • Be polite with the witnesses
  • By all means, challenge the accuracy of a witness’s testimony, but you should usually refrain from using words such as ‘liar’.

NOTE:

Your role as a witness being cross-examined

In your capacity as a witness, you should prepare yourself for cross-examination by your
respondent’s representative. You should prepare by considering what questions your
respondent’s representative is likely to ask you during cross-examination.

Each (or any) other witness/witnesses should also prepare himself/herself for being cross examined, by considering what question he/she is likely to be asked in cross-examination.

Tips for a witness who is being cross-examined

Below, are some top tips for you, in your capacity as a witness being crossed examined by your respondent’s representative:

Do not show anger if that representative challenges your version of events.

Listen to each question carefully.

Do not feel the need to rush your answer to any of the questions being asked by that representative. Take your time when replying to each question.

Silence may make you and others feel awkward. If there is silence between the questions you are asked, do not feel the need to say something to fill the gap.

If you cannot remember something that you have been asked about, say so.
Don’t make something up, just because you feel under pressure.

Do not take it personally, just because your evidence is being challenged. (Challenging claimant’s evidence is part of the job of any
respondents’ representative.)

Re-Examination

As noted above, the third stage of witness testimony is re-examination.

The purpose of re examination is to provide an opportunity for the relevant witness to clarify any matter which has arisen as a result of questions that were asked during cross examination.

During re-examination
1.
2.
3.

If you are the relevant witness, you can speak briefly, after cross-examination, for the purposes of clarifying any matter that came up in cross-examination.

If the relevant witness is some other witness (some witness, other than yourself, who is giving evidence on your behalf), you will have the opportunity, during re-examination, to ask that witness questions for the purposes of clarifying any matter that came up in cross-examination.

If the relevant witness is a witness who gave evidence on behalf of your respondent, your respondent’s representative will now be able to ask that witness questions for the purposes of clarifying any matter that came up in cross-examination.

Professional representatives rarely use the opportunity to re-examine, and when they do, their re-examination questions are few.

NOTE:

Here are some top tips for you, in your capacity as a re-examiner:

Listen carefully to what any “other witness” says when being cross-examined by the respondent’s representative.

You should take a note of any matters that you might want to pick up on during re-examination.

Closing Submissions

When all the evidence has been presented:

  1. You will have the opportunity to make a closing submission (“a Submission”)
  2. Your respondent’s representative will also have the opportunity to make a Submission.

You will make your Submission first, and the respondent’s representative’s Submission will be heard after you have completed your own Submission.

Purpose Of A Submission

The purpose of any party’s Submission will to inform the tribunal of that party’s arguments in favour of each of the following propositions:

  • Why the evidence given on that party’s side of the case should be regarded as
    more reliable than the evidence given by the other party
  • Why the law favours that party’s claims/ defences.
Top tips for a successful closing submission:

Prior to the Final Hearing,  practise saying what you will want to say during the Submission.

Get a friend or family member to listen to you practising.
(Ask them for their honest opinion. Did they understand it? Did you speak clearly?)

Remember to include, in your Submission, any points that support your case. Also, don’t forget to mention any such point which has only come to your attention during the Final Hearing.

The Final Hearing Outcome

Who decides the outcome of my case?

In relation to each of your claims, every member of the tribunal has equal decision powers in deciding each of the following:

  • Whether that claim is successful
  • The amount of compensation (if any) which should be awarded to you

However, during the course of the Final Hearing, the employment judge will, most of the time, act as spokesperson for the full tribunal.

How will the decision be announced?

The decision will be given in writing on some date after the Final Hearing has concluded. Usually, the decision will not be issued until some days, or weeks, after the end of the Final Hearing.