What happens at an Employment Tribunal preliminary hearing?

At an Employment Tribunal preliminary hearing, an Employment Tribunal judge may deal with case management matters or certain substantive issues. Case management issues may be, for example, to determine the length of the final hearing. The Employment Judge may also set out the timeframe in which tasks need to be completed by. An example of a substantive issue that may be determined at a preliminary hearing may be whether the Claimant is a disabled person or not for the purposes of the legislation ( a central issue in cases where discrimination is alleged).

Not all Employment Tribunal claims require a preliminary hearing. This is a matter for an Employment Tribunal judge to decide after viewing the claim form (ET1) and the response (ET3). Would you like to know what is an ET1 form? Or are you looking for an answer to the question what is an ET3 form?  For this information, view our blogs.

Preliminary hearings at an Employment Tribunal are more likely to be appropriate when the issues involved are complex, when discrimination is alleged, or when the outcome of a case depends on a specific issue such as whether the individual was disabled at the relevant time.

 What is a preliminary hearing employment tribunal agenda?

When it is decided that a preliminary hearing would be appropriate, the Employment Tribunal will send the parties, or their representatives, an agenda for the preliminary hearing. This agenda should be completed, and provided to the Employment Tribunal, prior to the preliminary hearing.

The agenda asks a number of questions, such as:

How many witnesses does the party intend to call?

What claims are being brought?

What are the issues for the Employment Tribunal to determine?

Is there an application to amend the claim or response?

The agendas will then be used by the Employment Judge to establish what needs to be resolved at the preliminary hearing.

How to prepare for an employment tribunal preliminary hearing

It is likely that the contents of the agendas will influence what is addressed during the preliminary hearing. Therefore, when considering how best to prepare, it would be sensible to focus on answering the questions in the agenda as fully as possible.

Some questions may appear straightforward to answer, such as how many witnesses does the party wish to call? However, that question still requires some preparation before making any decisions. For example, what issue(s) will the witness be able to comment on? Do the witnesses also add something in their own right? If not, would it be appropriate to reduce the number that were initially considered?

 Being realistic about the number of witnesses is important because it is likely to influence the length of time allocated for the final hearing. An Employment Tribunal may well be unwilling to subsequently increase that time allocation. Therefore, it is important to have any uncertainty about the number of witnesses resolved prior to the preliminary hearing.

Staying with the issue of witnesses, have efforts been made to establish whether those witnesses are willing to give evidence or not? If not, this will inform next steps. The above is just one basic example, but it demonstrates the importance of preparation.

What happens after a preliminary hearing at the Employment Tribunal?

Much will depend on the nature of the issues to be decided. For example, if a Claimant only brought an unfair dismissal claim, the Tribunal could strike the case out if, for example, it determined that the Claimant had an insufficient length of service to bring such a claim, or the claim was out of time.

Where the case will progress to a final hearing, the judge may well list the case (state the days on which the case will be heard). The judge is also likely to set out deadlines by which tasks must be completed such as the disclosure of any material which is relevant to the case, or when witness statements are to be provided by. These are referred to as orders and there may well be severe consequences for a party who does not comply with them.

When can a preliminary hearing take place?

As said above, it is common for a preliminary hearing to take place following the Tribunal receiving the claim and response, where the issues are complex. However, the Tribunal may initiate such a hearing at any stage in proceedings. Similarly, a party may request that a preliminary hearing takes place, it will then be for the Tribunal to decide what next steps should be.

How can a professional advisor help with a preliminary hearing?

1. Advice

Receiving advice before a preliminary hearing means that the issues involved (that the Tribunal is to determine) are clear and the potential options are highlighted. Perhaps, for example, a party is seeking to amend a claim or response or there is a need to resist such a request from the other side. In either situation, gaining advice prior to the agenda being submitted, ensures that a party can make informed decisions regarding next steps.

2. Drafting documentation such as the agenda for the preliminary hearing

As has been said throughout this blog, the agenda is an important document which should be prepared with thought and care. Having the document drafted for you will ensure, for example, that the issues are captured fully and that any material is presented effectively.

3. Representation at the hearing(s)

Obtaining professional representation for a preliminary hearing is likely to be of considerable value, particularly in circumstances when a party is seeking to have all (or part) of the claim struck out. Such representation will mean that the relevant points are made, and the applicable law is referred to where appropriate.

Plotkin & Chandler has expertise in supporting clients with all aspects of Employment Tribunal proceedings, and we assist employers and employees. Whether you need advice to understand the options available, you would like documentation drafted for the Employment Tribunal, such as a preliminary hearing agenda, or you are looking for representation at an Employment Tribunal hearing, we can help.

  To discuss your requirements, and the ways in which we can help, call us for a no obligation consultation on 020 3923 8616 or email us at info@plotkinandchandler.com