Tribunal justice and hearings
On 3 November 2008, the Tribunals, Courts and Enforcement Act came into force. This created a new two-tier tribunal system: A First-tier Tribunal and an Upper Tribunal, both of which are split into Chambers. Each Chamber comprises similar jurisdictions or bring together similar types of experts to hear appeals.
The Upper Tribunal primarily, but not exclusively, reviews and decides appeals arising from the First-tier Tribunal. Like the High Court, it is a superior court of record. As well having the existing specialist judges of the senior tribunals judiciary at its disposal, it can also call on the services of High Court Judges.
Employment Tribunals in England and Wales, and in Scotland, sit outside the unified structure created by the 2008 Act but come under the leadership of the Senior President of Tribunals. Appeals from the Employment Tribunals are heard in the Employment Appeal Tribunal.
Tribunals usually sit as a panel, incorporating a judge (previously referred to as a legally qualified tribunal chairman), and panel members with specific areas of expertise. Tribunals will generally hear evidence from witnesses and consider documents before making a decision on the case. Tribunals have limited powers (depending on the jurisdiction of the case) to impose fines and penalties or to award compensation and costs. Other types of tribunal decisions might result in the allowance or disallowance of a benefit, leave or refusal to stay in the UK, or about the provision of special educational help for school-age children.
Many cases involve individuals putting their own case, without legal assistance, so the system needs to be accessible to all. Tribunal Judges often help to ensure this, by guiding non-legally qualified parties through the necessary procedures.
There are many different tribunals, covering a wide range of different areas affecting day-to-day life.
Before the hearing
Before the hearing begins, the Tribunal reads the papers in the case and considers how to proceed when the hearing begins.
Tribunal Judges play an active role in managing tribunal cases once issued, helping to ensure they proceed as quickly and efficiently as possible. This may include:
- Setting appropriate directions to ensure that the right documents and witnesses are available at any hearing;
- Encouraging the parties to co-operate with each other in the conduct of the case, and (where appropriate);
- Helping the parties to settle the case; and generally,
- Controlling the progress of the case.
As many Tribunal hearings are open to the public, parties involved in a Tribunal case are welcome to arrange an early visit to the relevant hearing centre to see another appeal. This will give an insight to how the particular Tribunal conducts an open hearing.
Except in cases which involve national security or evidence of a very personal nature, tribunal cases are held in public.
In many cases, no oath will be administered, and hearsay evidence can be considered. Proceedings are relatively informal and nobody wears robes or wigs. Parties are expected to assist by following directions and providing enough copies of their relevant documents in good time, but the stricter disclosure rules for the ordinary courts may not be applied.
Occasionally, the parties will have agreed the relevant facts and it will not be necessary for the judge to hear oral evidence. The issues may concern the law to be applied or the terms of the decision or judgment to be given. However, more often than not, the parties will give written and oral evidence and their witnesses may be cross-examined (asked questions by the other party) to test their evidence against the other party’s case.
The Tribunal Judge ensures that all parties have their case presented and considered as fully and fairly as possible. During the case, the Tribunal Judge or the panel members may ask questions on any point that needs clarification or which will help with their decision. The Tribunal Judge also decides on all matters of procedure which may arise during a hearing.
The Tribunal Judge and panel members (if a panel hears the case), will consider the evidence. They are guided and constrained by the statutory powers of their tribunal to resolve the issue which the claimant has raised. If the case meets the requirements of the statute, the Tribunal can make one of a range of orders set out in the law.
The Tribunal will then hear closing arguments (submissions) from both parties, and make its decision.
Tribunal Chairs or Tribunal Judges may be assisted in their decision-making by other legally qualified members, or by experienced specialist panel members. Specialist members do not act as expert witnesses but bring to the panel their experience of their particular field. All legal matters remain the Tribunal Judge’s responsibility. All of the panel members take part in the decision.
The Tribunal’s decision is given either at the hearing, or in writing later. In either case, the parties will get a written decision.
After the hearing
Some tribunals can award costs, but not all.
The ordinary courts enforce tribunal decisions in cases of difficulty, and tribunals do not usually hold funds or order deposits.