Employment Tribunal case management orders

Employment Tribunal case management orders are drafted by an Employment Tribunal Judge. The orders typically set out the tasks that need to be completed, the deadline for those activities and who will be responsible for them. This is done to ensure that everything is in place for the hearing.

What sort of directions are contained in Employment Tribunal case management orders

The purpose of case management orders is essentially to ensure that everything is ready for subsequent hearings or the final hearing. Employment Tribunal case management orders are often communicated verbally, at a preliminary hearing for example, and subsequently the case management orders are sent to the parties in writing. The nature of the case management orders will depend on the circumstances, but examples may include:

1. Employment Tribunal case management orders for a final hearing

In such circumstances, the Employment Judge will set out when tasks need to be completed in preparation for the final hearing. For example, the orders will set out deadlines for disclosure (the process of the parties sharing with each other any material that is relevant to the issues in the case), when witness statements should be exchanged, who will compile the documents which will be put before the Tribunal at the final hearing (and when that task should be completed by) – this collection of material is commonly referred to as ‘the bundle.’

2.Employment Tribunal case management orders relating to preparation for a further preliminary hearing

This situation may arise on occasions when a party raises a point which may be fatal to the claim or part of it (this point may, for example, be contained in the response to the claim). Examples of such issues may be when it is alleged that time limits have been exceeded or that the Claimant is not a disabled person and therefore would be unable to pursue disability discrimination complaints. In such circumstances it may be considered appropriate for a preliminary hearing to take place in order to determine that particular issue.  In such circumstances, the Employment Tribunal case management orders will set out the various steps that need to be taken before the hearing takes place.

By way of an example, when disability is disputed, the Employment Tribunal case management orders may direct the Claimant to provide the Respondent with any relevant medical evidence and or provide a disability impact statement. After seeing the evidence, the Respondent may well then be directed to confirm whether or not the disability is accepted now or not. If the disability or disabilities continue to be in dispute, and depending on the circumstances, a separate hearing to determine the issue, may be appropriate.

Once an issue has been determined at a preliminary hearing, the Employment Judge at the hearing will draft a judgement and associated Employment Tribunal case management orders. The judgement will contain the decision and how it was reached.  Employment Tribunal case management orders will also be sent to the parties when all or part of the claim has survived following the hearing.

3. Employment Tribunal case management orders where a party has made an application to the Employment Tribunal

There may be occasions when one party has not complied with the orders, such as those concerning disclosure. In such circumstances, the other party may request that the Tribunal direct the other party to comply and or impose a form of sanction for non-compliance.

In addition to the example above, where one party has not provided the material within the required timeframe, there are situations when there are disputes between the parties and intervention of the Employment Tribunal is needed to resolve the matter. An example of such an issue is disclosure. In such circumstances, the Employment Tribunal may well make orders setting out what action is required from the parties and by when.

When are Employment Tribunal case management orders necessary?

In complex cases, such as those involving complaints of discrimination, it is common for a preliminary hearing to be listed at an early stage in proceedings, such as after the claim and response has been received by the Employment Tribunal.  However, an Employment Judge can make case management orders at any stage in proceedings. For more information on What is an ET1 form? or What is an ET3 form? Read our blogs. When a preliminary hearing does take place Employment Tribunal case management orders will be made.

An Employment Tribunal preliminary hearing may not be necessary in cases, for example, where only unfair dismissal is alleged. For more information on what happens at an Employment Tribunal preliminary hearing? Read our blog. Even if an Employment Tribunal preliminary hearing is not considered necessary, the Employment Tribunal may well issue Employment Tribunal case management orders imposing deadlines for tasks to be completed.

Are Employment Tribunal case management orders agreed or not?

That depends entirely on the circumstances. For example, it is common for case management issues to be discussed at a preliminary hearing. If there is agreement between the parties, the Employment Judge may record that the case management orders are made by consent.

There will, of course, be occasions when agreement cannot be reached. In such circumstances, it will be necessary to determine whether a further hearing is needed or if that issue can be settled at the final hearing

Can Employment Tribunal case management orders be changed?

Yes, but that will be a matter for an Employment Judge to decide. It may well be the case that, if a further hearing has taken place, the original case management orders will need to be varied (changed). Furthermore, the Employment Tribunal case management orders may allow the parties to change the deadlines, given in the Employment Tribunal case management orders, by a specified maximum limit, without the need for the Tribunal’s approval.

What are the consequences of not complying with Employment Tribunal case management orders?

An Employment Judge has considerable discretion when deciding what should happen as a result of not complying with case management orders. Depending on the circumstances, an Employment Judge may decide to vary the case management orders, meaning that the deadlines are amended.

In extreme cases, a claim or response may be struck out (meaning that the party that had not complied with the Employment Tribunal case management order is unable to pursue the claim or response (or aspects of it).

Alternatively, the Employment Judge may determine that it would be appropriate to limit the participation of the non-compliant party in proceedings. Other options available to the Employment Judge would potentially be to postpone the hearing and/or award costs to the compliant party.

Given the potentially serious consequences of non-compliance, it is particularly important to ensure that all case management orders are complied with.

 Plotkin & Chandler works exclusively in the areas of HR and employment law and assists both employees and employers.

If you have brought an Employment Tribunal claim, or you are an organisation defending one, and want advice and or representation relating to your case, or you would like guidance on a particular activity such as how to navigate case management orders (or tackle the tasks referred to in the orders) we can help.

Please contact us on 020 3923 8616 or via email on info@plotkinandchandler.com to discuss your needs and the ways in which we can help.