What Can Employment Tribunal Observers Do After a Hearing?

The observer’s role

Employment Tribunals are designed to provide a forum in which employees and employers present their cases before an impartial tribunal. The process depends not only on formal rules, but on the visible reality of fairness: each side being heard, evidence being considered, and participants being treated with appropriate procedural respect.

Observers — including McKenzie Friends, family supporters, campaigners, journalists and members of the public — may not be parties to the proceedings. That does not make their role meaningless. An observer can become an important independent witness to what happened in the room, particularly where a litigant in person later needs to explain procedural unfairness, conduct concerns or the atmosphere of the hearing.

Recording what happened

One of the most effective actions an observer can take is to produce a prompt factual note after the hearing. That note may later be turned into a witness statement or, in more formal contexts, an affidavit. The aim is not to argue the case again. The aim is to preserve what was observed.

Written notes taken during the hearing are often the safest practical tool, provided they do not disrupt proceedings and provided any applicable directions, reporting restrictions or confidentiality requirements are respected. Covert or unauthorised audio or video recording should not be treated as an alternative to note-taking.

Where an official recording or transcript route is available, the party should consider the formal tribunal process rather than informal recording. The role of the observer is to preserve a contemporaneous factual record that can sit alongside the official record, not replace it.

Witness statement or affidavit?

A post-hearing note may later need to be formalised. The correct format depends on the route being taken and the purpose of the document.

Both formats require discipline. The observer should avoid legal conclusions unless properly qualified and instructed to give them. A statement that says “the judge was biased” is much weaker than a statement that records the exact words used, the sequence of interruptions, the evidence not allowed, and the response given when the issue was raised.

Identifying irregularities

Most hearings proceed within the expected boundaries of tribunal procedure. Occasionally, however, an observer may see behaviour that appears to undermine fairness or the ability of a litigant in person to present their case.

The point is not to convert every adverse ruling into a complaint. Tribunals make case-management decisions. Parties lose points. Judges may be firm. The observer’s role is to help distinguish ordinary robust management from conduct or process concerns that may need to be addressed through the proper route.

Complaints about judicial conduct

If an observer sees judicial behaviour that raises genuine concern, the factual record may help a party decide whether to seek advice about a complaint. The Judicial Conduct Investigations Office deals with complaints about personal misconduct by judicial office holders, not ordinary disagreement with a judge’s decision or case-management ruling.

Examples that may require advice include overtly rude or inappropriate behaviour, apparent hostility expressed in personal terms, or conduct that appears to prevent a party from participating fairly. By contrast, an adverse decision, refusal of an application, or firm control of the hearing may need to be considered through appeal, reconsideration or legal advice rather than a misconduct complaint.

Conduct by legal representatives

Solicitors and barristers owe professional duties. If an observer sees conduct that appears to go beyond robust advocacy — for example misleading the tribunal, improper pressure, concealment of material, or aggressive behaviour that undermines fairness — a factual statement may help the party obtain advice about a professional complaint.

For solicitors, the relevant regulator is the Solicitors Regulation Authority. For barristers, the relevant regulator is the Bar Standards Board. In serious cases, a statement from an observer can help establish what happened, especially where the litigant in person was under pressure and unable to make a full note while presenting the case.

Public interest and media attention

Some tribunal cases raise wider public-interest issues, including discrimination, whistleblowing, institutional misconduct, worker exploitation, public-sector accountability or unfair treatment of litigants in person. Observers may help bring such issues to public attention through responsible writing, campaigning or media engagement.

That role must be handled carefully. Employment Tribunal hearings are often public, but public access does not mean everything can safely be published. Reporting restrictions, anonymity orders, restricted reporting orders, settlement terms, privacy rights, data protection, confidential material and live-proceedings issues may all affect what can be said.

Where the case has systemic importance, a careful observer note can support responsible public reporting. It can show what happened in open proceedings without overstating what the tribunal has or has not decided.

Practical checklist for observers

Observers who want to assist fairness should prepare before the hearing, take disciplined notes during it, and finalise any statement promptly afterwards while memory is still fresh.

Closing point

Observers are not mere spectators. In hearings where one party is unrepresented, under pressure or facing institutional power, an accurate independent record can become a practical safeguard.

The task is not to interfere with the tribunal or to turn every uncomfortable moment into a complaint. The task is to preserve the truth of what happened, in a form that can later be tested by solicitors, regulators, appellate bodies or the public where appropriate.

Justice must be done. It must also be seen to be done. Careful observers help make that principle real.