A preliminary hearing at the Employment Tribunal is a hearing conducted by an Employment Judge before the final hearing takes place. Preliminary hearings are designed to deal with procedural matters or points of law.
A preliminary hearing is often a key step in Employment Tribunal Claims.
Procedural matters are also known as “case management,” where the Judge will be taking steps to ensure the case is ready for trial. A preliminary hearing may also deal with a specific point of law, where a decision will be made that will have an impact on the case, such as strikeout, time limits, and disability status. For example, it may be disputed that the Claimant is disabled for the purposes of the Equality Act 2010, and there may be a PH to decide that one point.
Preliminary Hearing – What Is Case Management?
The Tribunal will make case management orders, also known as “directions.”
These are essentially directions on what needs to be done and by when to ensure the progress of the claim and that it is prepared for trial.
An example would be, “on or before the 14 May 2023, the Claimant shall serve on the Respondent her schedule of loss.”
A preliminary hearing is not listed in every case. They are not used in “simpler” cases, such as those involving wage claims and/or unfair dismissal only. They are generally always listed in claims involving whistleblowing and discrimination.
Typically, preliminary hearings concerning case management, are listed to:
- Clarify the issues the Tribunal will need to determine at the final hearing. This is an exercise of setting out the specific questions that the Tribunal will need to answer at Trial to determine the case. You will need to be able to explain the exact factual and legal basis of your claim. It is best to do this in advance and draft a “list of issues” to be used at the preliminary hearing.
- Determine the steps required to prepare the claim for trial (these can vary from case to case).
- Issuing the case management order (the directions). This is what needs to be done by a specific date.
- Listing the claims for trial. The parties will agree the length and dates for the hearing.
- If applicable, to discuss the possibility of judicial mediation as a way of settling the dispute.
When Will A Preliminary Hearing Take Place?
A preliminary hearing at the employment tribunal may be ordered by the Tribunal or because of an application by a party.
The Tribunal will give the parties reasonable notice of a preliminary hearing. You will receive a letter from the Tribunal, known as the “notice of preliminary hearing.”
If any preliminary issues are to be determined, (such as strikeout, time limits, disability etc) the Tribunal must give at least 14 days’ notice. The notice of hearing will set out what issues are to be determined at the preliminary hearing
A preliminary hearing is usually conducted by an Employment Judge sitting alone.
A preliminary hearing can be undertaken via telephone, online video hearing or in-person at the relevant Tribunal venue.
Preliminary Hearing Employment Tribunal – How To Prepare
The preparation required will vary depending on the case, but below are some key aspects you will need to deal with. Being well prepared is important, so important, we need to say it twice. Being well-prepared is important.
Below we cover some key aspects to prepare for a preliminary hearing (case management).
What To Prepare In Advance
In advance of preliminary hearings, we always aim to:
- Complete the “agenda” that is sent by the Tribunal.
- Prepare a draft list of issues.
- Prepare draft directions (the directions you are asking the Tribunal to make).
- Have the dates to avoid (dates where you would not be able to attend the final hearing, such as holidays or medical appointments).
- Liaise with the other side on the above points and get agreement on as many points as possible.
- Create a PDF of the key documents for use during the hearing, referred to as the “preliminary hearing bundle” (this will include the ET1, ET3, the documents mentioned above and anything else that may be relevant).
It is important to fully understand the claims you wish to bring so that you can answer any questions to clarify the issues.
What Will Be Discussed During the Preliminary Hearing?
The main points discussed during a preliminary hearing are usually obvious when both sides have completed their agendas. However, at most preliminary hearings the follow are discussed:
- What directions are needed.
- How long is required to comply with the directions.
- Identifying and clarifying the issues in the case.
- What else can be done to assist the Tribunal.
- The legal basis of the claims.
- Problems that need to be dealt with.
- Any applications.
- Judicial Mediation.
- The value of the claim.
- How long is needed for the main hearing and setting a date.
What Directions are needed?
The orders/directions (these terms are interchangeable) is when the Tribunal orders the party to do something by a specific date. It makes sense to think about, and to try and agree with the other side, what directions will be needed. Things to decide in advance:
- The orders required to get the case ready for Trial.
- The number and identity of the witnesses (including their availability, it is no good listing the hearing when your witness is on holiday).
- The length of the hearing.
- A timetable for the hearing.
How long do you need to comply with the directions?
At the hearing, the Tribunal will give dates for when tasks, such as providing your schedule of loss, sending relevant documents, and completing your witness statement, need to be done.
You need to consider how long each will task will take you. If you are not able to work on the case and this will delay you, it is best to ask for more time. If you know there are lots of documents and this will impact on how long it will take to prepare, raise this also.
The Tribunal are more likely to give additional time at the outset from a reasonable request than it is to late requests after a preliminary hearing.
What are the issues in the case?
This is a very important exercise and arguably the key task to complete at the preliminary hearing with the employment tribunal.
It is also generally led by the Claimant, because it is their case.
All too often, Claimants cannot clarify what their case is. You can imagine how successful these claims are. If you cannot pinpoint what you are claiming at an early stage, will you ever be able to?
This requires thought, research, and preparation. You will need to look at the legislation. You will need to break down what you are claiming.
It is no good to say you were “discriminated against.”
You need to be very clear about what you are claiming and why. Well-defined claims have better prospects of success.
You also need to be clear on exactly what you are alleging. Are you really saying your grievance rejection was discrimination, or was it just your dismissal?
What is required, is setting out the legal and factual issues the Tribunal will need to answer/decide at the final hearing.
What else can be prepared to assist the Tribunal?
At the start of a full trial, the Judge/panel members may have read nothing, but usually, they have read the Tribunal file, which will contain the ET1, ET3, and any correspondence involving the Tribunal (including its own orders, such as those made at the preliminary hearing).
The Tribunal may have little understanding of the claims, particularly if the claims are complicated. They will not have read the witness statements, they will not have read the documents in the bundle.
Coming into a case this late can be confusing. Lots of cases involve facts over a long period of time and involve multiple individuals.
It may therefore be sensible to prepare, and if possible agree with the other side, the following in advance of the full hearing:
- A chronology.
- Cast list.
- A Scott schedule (a table setting out allegations of discrimination).
The Judge may discuss the above at a preliminary hearing and ask if the parties feel they would assist.
The Tribunal sometimes orders the above to be produced, but if not, this does not prevent you from producing them. Doing what you can to assist the Tribunal to ensure it understands the case is always a good idea.
Put yourself in the Tribunal’s shoes for a second, you have a complicated case, with lots of documents and long statements, and you have only read part of the ET1 and ET3 before you saw the parties.
Now compare the Tribunal’s sentiment toward a Claimant that shows up ill-prepared, with nothing to offer the Tribunal to assist it, to a Claimant that provides a chronology setting out the key events, which includes a list of the core documents that should be read before evidence is heard.
It should be obvious which Claimant you would rather be.
Do you understand the legal basis of your claim?
The Tribunal is not there to decide if you have been treated “unfairly.”
The Tribunal must decide if there has been unlawful treatment.
To succeed, you are likely to require an understanding of the relevant law and what the Tribunal must decide to reach its decision. If you do not have access to legal advice, you will need to carry out some research.
The Tribunal will not expect detailed legal knowledge from an unrepresented Claimant, but it may expect a general understanding and ask questions about what unlawful treatment you allege.
At the preliminary hearing you should be able to explain the ET1 in detail, and what parts are background and what parts are specific allegations, for example of discrimination.
Are there any problems that need to be dealt with?
Before the preliminary hearing, you need to think about any potential problems with the claim or response that should be discussed and addressed in advance.
You may not be aware of any specific problems, but can see that the Respondent is alleging problems in its response.
- The response may state that parts of your claim are not understood and lacks detail. If it does, be prepared to provide the missing detail at the preliminary hearing.
- Are there any parts of the response that lack detail or do they mention defences, but fail to explain how they apply?
- Are there any errors in your ET1 that need to be corrected?
- Have additional facts arisen since making the claim that you want to be included in the proceedings?
- Are there any issues with time limits?
- Does the Respondent deny you are disabled, if so, how can this issue be tackled before trial?
Do any applications need to be made?
The parties can request the Tribunal to make case management orders.
In short, an application is asking the Tribunal to do something / give permission for something to do done, such as; postponing a hearing, permitting a claim / response to be amended, ordering the other side to disclose something, listing a hearing, ordering a party to do something (such as produce further information on their claim / defence).
Some of the problems outlined above may require an application.
Applications can be made at hearings (such as a preliminary hearing) or in writing. The preliminary hearing is often a good opportunity to make applications, as both parties are likely to be present to comment.
Are you interested in Judicial Mediation?
This is a process where the parties attend Tribunal, with an Employment Judge acting as a mediator, to see if the parties can settle the dispute.
You may not be offered judicial mediation at the preliminary hearing, but if you are, it is best to have considered it in advance.
It is often offered if the Claimant remains employed and/or if the hearing is lengthy / complex (usually if it is to last more than 4 days).
Who are the relevant witnesses?
It may be the case that you will be your only witness, but if not, you need to address this before the preliminary hearing.
At the preliminary hearing, you may be required to discuss:
- Who are your witnesses.
- Why are they relevant.
- The dates they can attend and why.
This information is important to be able to list the case properly. If each side has 1 witness the hearing is likely to be shorter than if each has 5 witnesses.
You may also be asked about the number of relevant documents because this can impact the length of the hearing.
The potential value of the claim?
You may be asked questions about what you are claiming (including reinstatement / re-engagement) and the potential value of the claim.
This does not always come up, but this may be a question from a Judge that is considering judicial mediation.
This will need to be addressed at some point and ahead of the preliminary hearing is often good timing. This also requires some research. The main issue, a lot of the time, is that the Claimant’s expectations are off.
Sadly, many believe their claims are more valuable than they are, and this makes the settlement less likely. You need to be aware of what you can claim and at what level, and to be realistic.
Assistance With A Preliminary Hearing
A preliminary hearing at the employment tribunal going well can have a dramatic impact. It is an ideal opportunity to clarify the claims and to show you are well-prepared and taking the process seriously (this often results in better settlement offers or better results at Trial).
Because preliminary hearings are so important, it is often an ideal segway to get professional assistance. If you fail to properly identify the legal basis of the claims and adequately prepare for Trial, your chances of winning are likely to be slim.