What Can Employment Tribunal Observers Do After a Hearing?

Employment tribunals are designed to provide a platform where employees and employers present their cases before an impartial judge. However, as someone who has frequently observed these hearings, I’ve often been troubled by issues concerning the conduct of legal representatives, procedural fairness, and even judicial impartiality.

As observers—be it as McKenzie Friends, supporters, or members of the public—we are far from powerless. While we may not have a direct stake in the proceedings, we play a crucial role in ensuring that justice is not only done but is also seen to be done.

Documenting the Proceedings: The Role of Witness Statements and Affidavits

One of the most effective actions we can take post-hearing is to produce a witness statement or an affidavit detailing our observations. These documents serve as vital factual records, especially when there’s suspicion of procedural irregularities, misconduct, or bias.

Witness Statement vs. Affidavit: Understanding the Difference

• Witness Statement: This is a factual account of what was observed, signed with a statement of truth. It’s typically sufficient for tribunal purposes. For guidance on structuring such statements, resources like Citizens Advice are invaluable.
• Affidavit: This is a sworn statement made before a solicitor or Commissioner for Oaths, often required for judicial review or regulatory complaints.

If a claimant intends to challenge a ruling or argue procedural unfairness, our statements can be invaluable. It’s crucial, however, to ensure these statements remain strictly factual—speculation or subjective opinions can undermine their credibility.

Identifying Misconduct and Procedural Irregularities

While most hearings adhere to proper procedures, there are occasions where we might witness concerning behaviour:

• Judicial Misconduct: Instances where a judge dismisses evidence without proper consideration or exhibits overt bias.
• Legal Representatives’ Misconduct: Situations where bullying tactics are employed against litigants in person or where there’s a failure to follow tribunal procedures, such as denying a claimant the right to present their case.

In such scenarios, our witness statements can support an appeal or a formal complaint. It’s important to note that while claimants can request the tribunal’s digital recording of the hearing (if available) under a Subject Access Request (SAR) to verify what was said, unauthorised recording of court proceedings is prohibited and constitutes contempt of court. However, taking written notes during hearings is generally permissible, provided it doesn’t disrupt the proceedings.

Filing Formal Complaints Against Tribunal Judges

If we observe judicial conduct that raises concerns, we can assist claimants in submitting a complaint to the Judicial Conduct Investigations Office (JCIO). However, it’s important to understand that the JCIO investigates issues of misconduct, not judicial decisions or case management. Valid complaints may include:

• Overtly rude or inappropriate behaviour.
• Failure to allow a party to present their case.

Even if a complaint doesn’t lead to immediate action, repeated reports about the same judge may eventually prompt further scrutiny.

Addressing Misconduct by Legal Representatives

Solicitors and barristers are bound by professional conduct rules. If we observe misleading arguments, concealment of evidence, or harassment of a claimant, these issues may warrant a complaint to the Solicitors Regulation Authority (SRA) or the Bar Standards Board (BSB). Potential misconduct includes:

• Knowingly misleading the tribunal.
• Suppressing evidence or failing to disclose key documents.
• Unprofessional or aggressive behaviour beyond normal cross-examination.

A well-documented observer statement can support a claimant’s complaint against legal representatives.

Engaging in Public Interest and Media Attention

In high-profile cases or those involving systemic issues—such as discrimination, whistleblowing, or unfair treatment of litigants in person—we can play a role in public accountability. Blogging, social media, and even contacting journalists can highlight patterns of concern. However, we must be cautious about breaching tribunal confidentiality rules, especially where reporting restrictions apply.

Conclusion: Our Role in Upholding Justice

As observers, we are not mere passive spectators; we serve as independent witnesses to the administration of justice. While the tribunal system provides avenues for redress, the reality is that claimants—especially those without legal representation—often struggle to challenge procedural unfairness.

By documenting proceedings, assisting with complaints, and holding tribunals and legal representatives accountable, we help uphold the principles of fairness and transparency. In a system that frequently favours institutions, our role has never been more vital.