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Unsure of your equality rights or the law? We can provide advice and assistance for people who feel they have been discriminated against.
 
 

Presenting your case

Tribunals

What you need to know

 
How to present your case at a Tribunal hearing

In this section we focus on the hearing and presentation of your case at the tribunal.  At this stage, all of the preliminary steps will have been taken, such as the Case Management Discussion, or a Pre-Hearing Review.


What papers will I prepare for the hearing?

At the CMD the tribunal will have required the preparation of a bundle of key documents for the hearing.  This bundle will also be used by the tribunal and should include the documents upon which you intend to rely on during the course of the hearing.


You can’t introduce new documentary evidence at this stage unless the Respondent agrees or the tribunal permits you to introduce it.  If you are making a last minute request to have documents admitted you should be prepared to explain why the request is only being made at the last moment.  The tribunal will be very reluctant to allow late admission of material in this way.


Remember that the tribunal will be familiar with the broad sweep of the case, though they will not have read all of the papers.  You will not be reading out the content of the bundle of documents from beginning to end but referring witnesses and the tribunal to particular documents that are particularly relevant to your claim.


It might also be helpful to prepare a single page summary of the case, showing what you need to prove and how you intend to prove it using the evidence available.  In the mass of papers which you will have accumulated and considered to date, a single page setting out the main elements of the case may be invaluable because there may be a danger that you cannot now see the ‘wood for the trees’.  Cross-reference that summary of your case with the bundle to make the navigation between the two even easier.

You should also consider preparing, for your own use:
 
  • the opening and closing statements; and 
  • lists of questions for each of the witnesses.

You probably won’t need to follow these documents to the letter but if you have the work done it will make it considerably easier for you at the hearing.  You do not furnish these documents to the Respondent or to the Tribunal.

What should I wear to the tribunal hearing?

The tribunal is a public legal hearing, so try to dress as smartly as you can.  You shouldn't wear casual clothes like jeans and trainers or chew gum.  Remember to switch off your mobile phone when you go into the hearing.  You shouldn't take food or drink into the tribunal room unless you have special health reasons to do so. 
 

Can I bring someone to the tribunal for support ?

You can bring friends or family with you to support you if you want to.  They will be able to sit behind you in the tribunal room but they must be quiet and never interrupt the tribunal.
 

Where do tribunals take place and who sits on them?

Tribunal hearings usually take place in Killymeal House, 5 Cromac Quay, Ormeau Road, Belfast and occasionally in other centres throughout Northern Ireland, such as Omagh, Co Tyrone.

Please refer to the tribunal’s website for details on how to find Killymeal House, including a street map.

Each tribunal panel is composed of three persons; a legally qualified chairperson, and one representative from each of employers’ organisations and employees’ organisations.  An employee of the tribunal attends the panel and this person is known as the Tribunal Clerk.
 

What happens at the tribunal?

You should aim to arrive at the tribunal at least half an hour before the hearing starts.  When you arrive a clerk will check you in at reception.  They will usually ask if you have a representative, any witnesses and any documents for the tribunal.
Make yourself known to the Tribunal Clerk when you arrive for the hearing and if there are any last-minute hitches, or perhaps settlement negotiations, keep the Clerk informed and they will alert the Panel.  You may be allowed further time before the commencement of the hearing to resolve those matters.

You will then be shown to a Claimant’s waiting room.  You will be in a separate waiting room to the Respondent and the clerk will come and get you when the tribunal is ready for the hearing.  Don't forget that a tribunal is usually a public hearing, so there might be other people in the room when you go through for the hearing.
 

What is the format of the Tribunal and the roles of the parties?

The Tribunal members sit on a raised dais with the Chairperson seated in the centre. The Clerk of the Tribunal sits in a separate desk to the left of the Panel as you look at the Panel face-on. The parties sit either side of a table beneath the dais on which the Panel sits. The Claimant usually sits on the left with the Respondent on the right, as illustrated in the photographs below:

Role of Chair
The Chairperson has a general power to manage proceedings and allows him or her to take an order in relation to any matter which appears to be appropriate.  It might also be worth familiarising yourself with Rule 10 of the Industrial Tribunal Rules  or Rule 9 of the Fair Employment Tribunal Rules (as appropriate).


Addressing the Tribunal
You can refer to the Chairperson of the panel as ‘Mr Chairman’, or ‘Madam Chairwoman’ or simply as ‘Chairman’.  When addressing the whole tribunal you can refer to ‘the Panel’ or ‘the Tribunal’.
 

How are the hearings conducted?

Tribunals are given a free hand to conduct proceedings in a manner which is most appropriate for the just handling of the proceedings.  There isn’t, therefore, a fixed procedure that the tribunal must follow but usually you go first, as you must prove your case.  Below is an example of what is usually involved:
 

  • you make an opening statement about your case and then call your witnesses.  They give their evidence by reading out their witness statements or by answering your questions;
  • witnesses may be cross-examined by the Respondent’s representatives;
  • your witnesses may be re-examined by you about matters that arose in cross-examination;
  • at the conclusion of your case (i.e. when all your witnesses have been examined and cross-examined), the Respondent calls and examines its witnesses, who, of course, may be cross-examined by you.  (The tribunal members are also free to ask questions of the witnesses and often do so.);
  • when all the oral testimony has been given, the proceedings usually conclude with a closing statement from the Respondent and you, in that order, meaning that the you have the last word.


Opening statement
You are now at the point that you have been preparing for quite some time.  The paperwork is complete, the hearing date has arrived, your witnesses are in attendance and the hearing is about to commence.

You should consider making a short opening statement outlining the nature of the case you intend to prove.  Bear in mind that the Panel will be broadly familiar with the case from the papers, the CMD will have narrowed the legal and factual issues in dispute between you and the Respondent, and the Statement of Facts and Issues, produced as a result of the CMD, will form part of the bundle. There is no need therefore to labour the opening statement.  A short outline of your case should suffice, stressing why it is you allege discrimination on the part of the Respondent.
 

Standard of Proof

What must I prove? - The burden and standard of proof
In all discrimination cases, the burden is on you to show that you were discriminated against in a manner which is unlawful, under the appropriate legislation.  It is best to understand the ‘balance of probabilities’ standard as requiring you to show that ‘more likely than not’ you were discriminated against.

This means you must set the pace by bringing evidence before the tribunal that demonstrates that, more likely than not, you were the victim of unlawful discrimination.

However, in discrimination cases, there is a significant difference with other legal cases, in that the burden of proof shifts to the Respondent if you can show a “prima facie” case of discrimination.  If you manage to do that the Respondent is required to demonstrate to the tribunal why its actions should not be considered discriminatory.

This means, in effect, the Respondent must offer reasons for its actions and decisions and is in danger of losing the case if it fails to adequately explain what happened.          

                                                                                                                
What sort of evidence can I have admitted at the hearing? - Admissibility of evidence
You need not be overly concerned about technical rules of evidence when appearing before a tribunal because the Rules of Procedure direct a tribunal or Chairperson to ‘seek to avoid’ formality in the proceedings.  The Tribunal is not bound by any statutory provision or rule of law relating to the admissibility of evidence.

Common sense will tell you that direct, eyewitness testimony is the most effective evidence.  Hearsay evidence, where someone is repeating what someone else told them, is generally less effective.  Ultimately the weight or importance to be attached to evidence is a matter for the tribunal.
 

Presenting your case

‘Putting your case’

Make sure that the matters that form part of your case are addressed in the course of your testimony and that of your witnesses.  You cannot cross-examine the Respondent’s witnesses about matters which have not been put before the tribunal in evidence.

If you allege that a certain person made discriminatory remarks to you, and this allegation is not clear from the evidence you put before the tribunal, you may have great difficulty challenging the evidence, during cross-examination, of the Respondent’s witnesses about these remarks.  The Respondent will object saying that there has been no evidence about those discriminatory remarks being made to you.  You will have lost your chance to press this matter by your failure to bring forward evidence about it.

Equally, you can object if one of the Respondent’s witnesses raises a matter in examination which was not put to you or your witnesses in cross-examination. 

For example:  One of the Respondent’s witnesses says he overheard Phillip say to one of his co-workers that he was going to ‘invent a case’ against his employer just to squeeze money out of him.  If this evidence was not included in the Respondent’s witness’s evidence, then you will be free to object to any reference to it by pointing out this failure by the Respondent.


Examining the witnesses

Preparation of the questions you intend to ask your witnesses and the Respondent’s witnesses is crucial.  It is tempting to think that the appropriate questions and submissions will occur to you ‘on the day’ but this rarely happens.  

A good starting point might be to consider what your closing submission to the tribunal might be and then consider what evidence you will need to have introduced to back up those submissions.  You cannot lead or prompt your witness to mention things they appear to have forgotten or ask a question which suggests or prompts a particular answer.

For example:   “You overheard the manager say to the assistant manager that he would never employ a woman, didn’t you?”  Instead you may ask “Did you overhear the manager say anything to the assistant manager about employing a woman?”

Call your witnesses in the order you consider logical.  Where a witness statement has been prepared then the witness may read their statement or simply adopt it as their evidence.  You may be permitted to ask some questions of your witness to elaborate on some aspect of the statement but the tribunal will only allow further evidence from your witness in exceptional circumstances.  You will not be allowed to simply examine a witness about everything already in his or her witness statement.

You can cross examine a witness on the contents of their witness statement.  It's important to question anything the witness has said that you don't agree with.  If there are differences in the evidence, it's often a good idea to get one witness to confirm very clearly that what they have said is true.  Then ask them to look at the evidence which is different, and ask them to comment on it.  If what they are saying is clearly or evidently true, then the evidence in the document or the other witness’s statement must be false.  The point of asking these questions is to show the tribunal more evidence to back-up your case.  You don't have to get the witness to admit they're wrong.

If a witness’s evidence is interrupted by a break for lunch or some other event, that witness is not allowed to discuss the case with anyone over the course of that break.


Closing statement

At the conclusion of the hearing, your focus is in making a closing statement on the evidence that has been opened before the tribunal and the extent to which this meets the legal definition of discrimination that you are seeking to prove.  Similar to the opening statement, the closing should be to the point and relevant.

This is your opportunity to comment on the evidence adduced and to invite the tribunal to draw certain conclusions from the evidence.  You can, for example:
  • highlight inconsistencies in the Respondent’s evidence
  • suggest that the Respondent’s evidence is less credible than that of you and your witnesses
  • emphasise the extent to which you have shown that the legal definition of discrimination, harassment or victimisation (as the case may be) has been made out by the evidence you have introduced

The closing statement is not an opportunity to introduce any new evidence or make any new points but simply a way to highlight the manner in which you say the case has been proven, on the balance of probabilities.

It is a good idea to have a closing statement drafted, even if only in bullet point form.  If the hearing has gone according to your plan then your draft closing statement should be very relevant.  It will act as an aide memoire as you seek to highlight for the tribunal those aspects of the evidence that support your claim to have been discriminated.

Be prepared to respond to the Respondent’s closing statement if necessary, raising counter-arguments and/or highlighting evidence which detracts from the effect of its closing statement.
 

Duty to mitigate

Your duty to mitigate your loss

Even if you have been dismissed as a result of unlawful discrimination you cannot ‘sit back’, as it were, and do nothing simply because you are the one who was badly treated.  You have a duty to ‘mitigate your loss’ (i.e. reduce the effect of your loss) by seeking alternative employment.  If you don’t, this will affect the amount of compensation that you will be awarded.

Have evidence available for the hearing of jobs that you have applied for, or details of your current earnings.  Keep copies of job applications, interview letters, rejection letters etc. to demonstrate to the Tribunal that you have been trying to ‘mitigate your loss’.
 
 
 
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