Representing yourself at employment tribunal

A lot of people represent themselves at employment tribunal and the process is designed to make this possible as you cannot usually get help for free, and you can only get Legal Aid in some very rare discrimination cases (and your household monthly income must be less than £2567 before tax).

There are two charities that connect people with lawyers and barristers who can represent them for free – the Free Representation Unit and Advocate. See Help for people going to an employment tribunal for more details. Both usually have more people that need help than they can help so don’t pin too much hope on being successful. Support Through Court can also help you to represent yourself more confidently by helping with practical support and helping you prepare your case – they can also refer you to the charities that help with representation.

Begin to prepare your case as soon as you can as this will reduce your stress.

Go through all the evidence in the bundle. Make a note of any key points or inconsistencies that could help your case or harm it. Do this on a separate document or a copy – you must have a copy of the bundle that is unmarked for the hearing.

You will need these to prepare your questions for the witnesses (both for your side, and your employer’s). You should also think about how you would answer questions they might ask about any issues that harm your case.

Watch a hearing

If it is possible, it might be really helpful to watch someone else’s hearing. They are usually open to the public and it will give you a good idea of how things work so that you can feel more prepared for your own. The best thing is usually to contact your nearest tribunal and ask if there are any you could observe soon. You can observe via video or you could go in person. It will be most helpful to watch a hearing about a case that is similar to your own, for example that is also about unpaid wages or discrimination or the issue your case is about.
 

Can you delay the hearing?

It is best to be prepared because you cannot usually postpone the hearing and if you do so unnecessarily, you might be asked to pay some of your employers’ legal costs which could be a lot of money. If it is at an inconvenient time, you should make whatever arrangements you need to in order to go to the hearing.

If there is a very good reason to postpone, email the tribunal and your employer as soon as possible to make the request. Good reasons to ask for a delay might be that you or a crucial witness is ill or you have been given an online hearing and you need it to be in-person. Say when you will be ready for the hearing.

If you ask less than seven days before the hearing, they are not likely to agree, unless it is due to sickness you could not have known about earlier. If this happens, try to get medical evidence that says that you are sick and (ideally) not well enough to give evidence in a Tribunal. If possible, it is helpful if this evidence suggests when you will likely be better. If you cannot get evidence before you ask for the delay, try and get some afterwards. If it is clear that you were genuinely sick, the other side is unlikely to ask you to pay any legal costs.
 

If you don’t want to go ahead with the Employment Tribunal hearing

If you want to stop the case, or just a part of it, that is called ‘withdrawing your claim’. Preparing for the hearing and representing yourself is stressful and some people find that they panic a bit as it gets closer. If you are in this situation, see if you can get advice or get in touch with Support Through Court for some support.

If you find you don’t want to go through with it, it would be better to try to negotiate a settlement with your employer. In return for you dropping the case they may well agree to pay you some of the money you had hoped to win, or give you a reference and agree not to ask you to pay their legal costs (they have probably paid a solicitor to help them deal with your claim).  Getting them to agree not ask the Tribunal to make you pay for their legal costs is probably the most important thing. See our advice on negotiating a settlement agreement with your employer.

To end the case, or any part of it, you email the tribunal and send your employer a copy. It is sensible to do this as soon as possible as that minimises the unnecessary costs and effort for everyone. You can’t change your mind after the Tribunal has made an order to dismiss the case so think about it carefully.

Avoid doing this at the last minute as that would make it more likely that the court would order you to pay some of your employer’s legal costs (unless your employer has agreed not to ask for this).

September 2024

During the hearing, you will be given the chance to question the other side’s witnesses and they will be able to question you and any other witnesses you have. The point of this is to highlight contradictions or inconsistencies, clarify facts, and enable you to strengthen your case.

Looking back at the evidence and key points or inconsistencies you highlighted, prepare a list of questions for each witness. Ask the most important questions first. Avoid including anything that isn’t relevant – it will just waste time and may mean you don’t get to ask everything you want to.

Use questions that prompt or encourage the answer that you want, so that people say what you expect them to say. For example, “Isn’t it true that….” Or “You agree that…”. The Judge will stop you if your questions are inappropriate and can help you reframe them to make them acceptable in a tribunal.

Pay attention to their responses and look for things in them that support your case. Be ready to use follow up questions.

Avoid using legal jargon as you might not use it correctly – stick with words you know. Remain calm and polite whatever happens.

You need to prepare for being cross-examined too. Think about what you want to tell the tribunal. Look for things that might seem not to support your version of events and think about how you could avoid those issues. Think also about how you would answer questions about them. You will not be allowed to have any notes with you on the witness stand, but it will be helpful to have made notes and look at them before the hearing begins. You will only be able to have your witness statement and the bundle with you and they cannot be marked up or added to in any way.

When you are cross examining or being cross examined:

●        Be prepared for it to be stressful and upsetting – most people don’t find it a comfortable experience to stand up in front of other people and have their version of events challenged.

●        Try to speak slowly and clearly

●        Stay calm and polite

It is the Judge’s job to make sure the hearing ends on time, so they may cut short your time for questioning or explaining. Get to the most important points quickly.

At the end of the hearing, you will usually be asked if you would like to say anything more (this is often called a ‘closing submission)’. It is best to prepare this before the day, but be prepared to change it if different things came out in the evidence than you expected. If you can, plan a few things to say that recap why you think the Tribunal should agree with you, and draw their attention to the evidence that supports your case.

You don’t have to give a closing submission. Instead you can say that you would prefer to answer any questions members of the tribunal have.

If your employer didn’t follow the court orders, didn’t really have a defence, or didn’t share evidence with you as they should have, you can ask the court for either a preparation time order (if you represented yourself) or a costs order (if you had someone to represent you at the hearing). This is to compensate you for the money or time you spent preparing for the hearing.

If you are thinking of doing this keep a record of the hours you spent preparing as you can be paid £41 an hour for it (in 2024, this amount goes up every year). You should also warn your employer that you will ask for this before the hearing. You then need to ask the tribunal at the hearing or within 28 days, detailing the hours spent and what your employer did that was unreasonable.

Your employer has to have done something wrong for the court to consider ordering them to pay your costs.

The tribunal is like a court. If your hearing is in person, it will probably be in a room laid out with the judge or panel behind a slightly raised desk. You will usually wait in a different waiting room from your employer.

If it is a video hearing, HMCTS have a helpful video about video hearings.

Most claims are heard by an employment judge sitting alone. You should call the judge ‘Judge’. If your case is about discrimination or whistleblowing, it may be heard by a tribunal panel of three people – the judge, an employee representative, and an employer representative. You can call the non-legal members ‘Madam’ or ‘Sir’.

When the hearing starts, the judge will introduce themselves and the panel members (if there are any). They will ask both you and your employers some questions so that they understand what your case is about and the issues which they will have to decide on.

They may also ask if ‘all the directions/orders were followed’. This means did everyone do what they were supposed to do to prepare. If you have had any problems getting the right documents off your employer, now is the time to tell them.

Next it will be time to answer questions about your witness statement or for your employer to answer questions about what they said happened. The judge or panel will have already read all the witness statements.

The judge will tell you what order to go in. In cases about unfair dismissal, the employer usually goes first. In cases about underpaid wages claims, you would usually go first. In cases about discrimination, you usually go first. If you go first at the beginning of the case, you also get to go last in the closing arguments.

Before you give evidence, you have to promise to only tell the truth. You can swear on a religious book or you can promise to do so without a religious book by confirming that what you will say will be the truth. It is a criminal offence to lie to the Tribunal after making this promise.

If you are giving evidence for a long time and start to feel tired, or become upset or unwell, you can ask for a short break.

After your employer or their representative have finished asking you questions, the judge or panel may ask you some. They may do this to your employer after you have finished asking them questions too.

Then you have a chance to ask questions of each of the witnesses for your employer about their witness statements.

Remember it is your tribunal hearing.

If you are representing yourself it is vital that you understand everything that is said.

If you do not understand something, don’t pretend that you do. Just politely ask them to explain or ask questions until you do.

The employment tribunal is used to people representing themselves.

Normally, the judge will tell you the decision at the end of the hearing. They will also tell you the reasons for that decision. If you lose, it is useful to ask for the reasons in writing so that you understand why they made that decision. You can ask for them immediately at the end of the hearing, or by contacting the tribunal office that gave the judgment within 14 days. If longer has passed you can still ask – just explain why you couldn’t ask earlier. Usually the reasons are sent out within 28 days, but it can take much longer.

Sometimes, usually in more complex cases, they won’t give you the judgment immediately. They call this ‘reserving the judgement’. It just means they need a little longer to think about the decision and will then send it to you in writing, usually within 28 days (but it can be longer).  

Hearings are not always recorded, but where they are you can request a transcript. You do have to pay a substantial fee for this though.

Sometimes you may be told if you have won and why, but not the amount of money you have won. When this happens, you will need a further hearing to decide the level of compensation. If this will happen to you, you will have been told before the hearing.

You should normally be paid the compensation you won within 14 days of the judgment. After that time, if they haven’t paid up, interest is added to the amount at 8%. You will be provided with information by the Tribunal about how to ensure you get the compensation. The Tribunal does not get involved in this.

If they don’t pay you (whether you won your case or agreed through conciliation with Acas), you can use the free government run Employment Tribunal Penalty Enforcement and Naming scheme. Just download and complete the form and email it to the address on GOV.UK. They will then get a letter warning them that they have 28 days to pay or they will receive an additional fine.

 If they still don’t pay, you will have to go to court to ask for a court order that they pay up. You can find out more about this ‘Fast Track’ enforcement process on GOV.UK.

If your employer has not paid you and has become insolvent, there are some elements you can claim from the government insolvency service. See if you can apply for them to pay you.

If you do get paid, and get any means-tested benefit (usually Universal Credit) remember to inform the relevant departments of DWP about your Tribunal award to make sure you do not end up being paid too much. If you got any means-tested benefit after losing your job, your employer will usually have to repay this amount directly to the government, before paying you the rest of the compensation awarded.

If you do not agree with the Tribunal’s decision, you can apply in writing for a ‘reconsideration’, or you can appeal an employment tribunal decision.

It would be reasonable to apply for a reconsideration where, for example, you think that there was a calculation error in the amount of the award, or where there was some procedural mistake, such as missing evidence. An application should be made within 14 days of the judgment of the judgement being sent and must explain why the reconsideration is necessary.

You can only appeal an employment tribunal decision if the tribunal has misinterpreted the law itself, not just because you think it was ‘unfair’. If you want to appeal you must get the written reasons for the judgment, and appeal within 42 days of these being issued. See GOV.UK for details of how to appeal. You really should get legal advice before you do this.

The information in this guide applies to England and Wales.

The law is complicated. We recommend you try to get advice from the sources we have suggested.

The cases we refer to are not always real but show a typical situation. We have included them to help you think about how to deal with your own situation. 

Acknowledgements

Advicenow is grateful to the Ministry of Justice for funding the creation of this guide under the Online Support and Advice Grant.

Advicenow would like to thank everyone who provided advice and feedback on this guide, particularly Chris Lake, Rebecca Thomas of 42BR Barristers, and editorial teams at Thomson Reuters who kindly peer reviewed it.

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