Preparation for the hearing
- Objective of the hearing
- Initial consideration of appeal and response
- Disclosure of documents
- Witness evidence
- Witness attendance
- Witness expenses
- Common rules applicable to all appeal hearings
Objective of the hearing
1. 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 cases fairly and justly. This overriding objective includes so far as practicable-
- ensuring that the parties are on an equal footing;
- dealing with cases in ways which are proportionate to the complexity and importance of the issues;
- avoiding unnecessary formality and seeking flexibility in the proceedings;
- avoiding delay, so far as compatible with proper consideration of the issues; and
- saving expense.
2. 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).
Initial consideration of appeal and response
3. As soon as possible after the acceptance of the response, an Employment Judge will consider all of the documents held by the Tribunal in relation to the claim, to confirm whether there are arguable grounds established by both parties.
If the Judge considers that the appeal, or part of it, has no reasonable prospect of success, the Tribunal will send a notice to both parties setting out the Judge's view and the reason for it. The notice will also contain an order that the appeal, or the part of it in question, shall be dismissed on such a date as is specified in the notice unless before that date the appellant has presented written representations to the Tribunal explaining why the appeal (or part) should not be dismissed.
If no such representations are received the appeal will be dismissed from the date specified without further order.
If representations are received from the appellant within the specified time they will be considered by an Employment Judge who will either permit the appeal (or part) to proceed or fix a hearing for the purpose of deciding whether it should be permitted to do so. As the respondent you may, but need not, attend and participate in the hearing. This will need to be discussed between yourself, your lawyer and your line manager.
If any part of the appeal is permitted to proceed the Judge shall make a case management order.
Disclosure of documents
4. 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 at any stage of the proceedings to obtain a case management order for disclosure.
5. The Tribunal has the same powers as the County Court to order either party to make disclosure. 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.
6. 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.
7. There may be circumstances where someone who is not a party to the appeal holds documents which are required, eg 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.
8. 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 advice. See the section Investigation – Collecting Physical Evidence – Obtaining Evidence Using Section 20 Powers[166] for more guidance on legal professional privilege.
9. It is usual for parties to an appeal to try and agree 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 case management orders for the mutual exchange of witness statements and documents..
Witness evidence
10. 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.
11. 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.
12. The information contained in the appeal form 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
13. 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 order the attendance of any person as a witness If you need to require a person to attend as a witness an application for a case management order should be made to the Tribunal as early as possible. You will need to satisfy an Employment Judge that the witness will not attend voluntarily, eg the witness has been seen, a statement taken, and refuses to attend.
14 Where a witness, including yourself, is called to give oral evidence, any witness statement of that person ordered by the Tribunal shall stand as that witness's evidence in chief unless the Tribunal orders otherwise. Witnesses will be required to give their oral evidence on oath or affirmation. The Tribunal may exclude from the hearing any person who is to appear as a witness in the proceedings until such time as that person gives evidence if it appears in the interest of justice to do so.
Witness expenses
15. The expenses of witnesses should be reimbursed as far as possible and conduct money provided in appropriate cases. There is no guarantee that HSE will be able to fully reimburse the witness for loss of wages as we follow the rates approved by the Crown Prosecution Service [167]and these rates are capped.
Common rules applicable to all appeal hearings
16 The Tribunal may regulate its own procedure and will conduct an appeal hearing in the manner it considers fair, having regard to the principles contained in the overriding objective. The Tribunal will always seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence. The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts. The following specific rules do not restrict this general power:
A Tribunal may impose limits on the time that a party may take in presenting evidence, questioning witnesses or making submissions, and may prevent the party from proceeding beyond any time so allotted.
A hearing may be conducted, in whole or in part, by use of electronic communication (including by telephone) provided that the Tribunal considers that it would be just and equitable to do so and provided that the parties and members of the public attending the hearing are able to hear what the Tribunal hears and see any witness as seen by the Tribunal.
If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the appeal or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party's absence.
Where a Tribunal is composed of three persons any decision may be made by a majority and if it is composed of two persons the Employment Judge has a second or casting vote.