Preliminary Hearing in the Employment Tribunal

Preliminary hearings are very common in Employment Tribunal proceedings, particularly discrimination claims.  We are frequently asked by employees and employers involved in employment disputes what preliminary hearings are and what happens at them.   The following is a brief guide to what these hearings are about and what to expect if you are required to attend one.

What is a Preliminary Hearing?

A preliminary hearing is an interim hearing that takes place before the final hearing of a claim in the Employment Tribunal.  It usually occurs early in the proceedings and may be called by the tribunal of its own motion or on the application of one of the parties.  

There are two main types of preliminary hearing – a case management preliminary hearing or a preliminary hearing to discuss a preliminary issue. 

A case management preliminary hearing is one that tends to deal with administrative issues and will commonly be used to:

• Clarify, through discussion with the parties, what the issues of fact and law are that will need to be decided at the final hearing.

• Decide what steps the parties need to take to prepare the case for the final hearing.  This typically will involve the judge deciding when the parties should send each other their documents, when witness statements should be exchanged and when hearing bundles need to be prepared and so on. 

• Issue “case management orders”.  These orders consist of a set of instructions to the parties as to the steps that must be undertaken before the hearing. 

• Explore the possibility of settlement or alternative ways of resolving the dispute.

A preliminary hearing to determine preliminary matters is one where the tribunal will be deciding substantive issues of law or fact such as whether the claim is out of time or whether the employee has sufficient length of service to bring a particular claim.  This type of preliminary hearing will also, normally, deal with administrative issues as well. 

The parties will be notified in advance by the tribunal if the preliminary hearing is going to be used to decide a preliminary issue so that they have time to prepare.   The tribunal may also require the parties to take certain steps before the hearing to help it decide the issue – for example it may require the parties to disclose documentary evidence and/or to prepare written witness statements.  

Who decides if a Preliminary Hearing is needed?

Normally the hearing will be called by the tribunal, but it can also be applied for by a party to the proceedings. 

When a claim form is submitted and a response (grounds of defence) is received by the tribunal, the case file will be put before a judge who will examine it and decide whether a preliminary hearing is necessary.  

It is also common for a party to the proceedings to apply for a preliminary hearing.  This will tend to happen where, for example, they want the tribunal to decide a preliminary issue or want the tribunal to consider an application to strike out the claim or response.  

When and where will the hearing take place? 

Currently, the tribunals are dealing with a large number of claims, and we are finding that parties are having to wait a number of months for a preliminary hearing to take place.    This varies, however, from region to region. 

Most preliminary hearings will take place remotely, over the telephone or via video using a cloud video platform.   The parties will receive instructions as to how to dial-in to the hearing in advance.    However, if the purpose of the preliminary hearing is to decide a substantive preliminary issue, then the tribunal may order that the hearing take place in person in the tribunal.  

Who will conduct the hearing and how long will it take?

Preliminary hearings will generally be conducted by a judge sitting alone.   If a preliminary issue is to be decided, a party can ask for a full panel to be present (a full panel consists of an employment judge and two non-legally-qualified members) but this has to be done on application and the tribunal will decide if this is appropriate or not. 

Where the purpose of the preliminary hearing is to discuss administrative issues, the hearing will tend to be listed for an hour.  However, if there are preliminary issues to be decided, they will be allocated a longer time period.  The length of the hearing will depend on the number of preliminary issues to be determined and the amount of evidence to be heard so they can sometimes be listed for one or two days.

What is the typical agenda of a preliminary hearing? 

Again, this depends on what the purpose of the hearing is.  It is usual for the tribunal to send the parties an agenda to complete in advance of the hearing.  The tribunal will ask the parties to try and agree this agenda but if not the parties will be required to send each other copies of their completed agenda and also send a copy to the tribunal at least 2 days before the hearing. 

The agenda of a preliminary hearing will typically include the following:

• Identifying what the legal and factual issues are that the tribunal will need to decide upon at the final hearing. Once the issues are confirmed, the judge will record these in the case management order so that the parties are clear what the tribunal will be deciding upon at the final hearing. 

• Discussing whether the parties want to amend their claim or response, or if they want to request further information about the others’ case.  

• Considering whether there are any preliminary issues to be decided, such as jurisdictional issues (e.g. whether the claim or response is out of time).

• Deciding any applications to strike out the whole or part of a response or claim.

• Identifying whether the claim is suitable for alternative methods of resolution, such as judicial mediation, and, if so, exploring with the parties what their views are on taking part in this. 

• Considering what case management orders need to be issued so that the parties are clear about what they need to do to prepare for the final hearing and by when.  

• Diarising the case for the final hearing after considering how long is needed and when witnesses are available.   

What kind of “preliminary issues” can be decided at a preliminary hearing?

Common preliminary issues include:

• Whether a claim or response has been submitted out of time and, if so, whether it should be allowed to proceed based on the legal tests in this area.   

• Whether an individual has sufficient length of service to bring a particular claim – for example, whether they have the necessary 2 years’ continuous service to bring an unfair dismissal claim.

• Deciding if the employee has a disability, within the definition of a disability under the Equality Act 2010, and whether they can therefore pursue a claim for disability discrimination. 

• Determining if an individual has employee status and can therefore bring a claim only available to employees, such as unfair dismissal.

The tribunal has a wide discretion as to how preliminary issues will be determined at the hearing.  Sometimes, as mentioned, the tribunal may ask to hear evidence from witnesses of each party.   In other cases, it will decide the issue based on a review of the documents provided and after hearing the arguments from each party or their representatives.   

Applications to strike out a claim or response

Sometimes a party to a claim will ask the tribunal to consider an application to strike out the whole or part of a claim or response at the preliminary hearing.   An application for a strike out is commonly argued on the grounds that the claim or response, or the manner in which it has been conducted, is “scandalous, vexatious, or has no reasonable prospect of success”.    This is often a tactical move.  Again, a party will be given advance notice of such an application so they have time to prepare their case and argue why their claim or response should not be struck out. 

How do you prepare for a preliminary hearing?

Again, this depends on what type of preliminary hearing it is as clearly if the hearing is to decide a preliminary issue, this is going to require more preparation, including preparing legal arguments.  It is advisable, however, to prepare thoroughly no matter what kind of hearing it is.

Here are some general pointers:

1. If the tribunal has sent out an agenda for completion – use it.  This can be a useful checklist and will help you have your answers ready for the judge when they go through the agenda.  

2. Consider what the legal and factual issues are that you want the tribunal to decide at the final hearing, make a list of them and try and agree them with the other side.

3. Think ahead about what witnesses you will be calling to the final hearing and find out their dates of availability as the judge will more than likely set a date for the final hearing.

4. Consider what orders the judge is likely to make and how long you will realistically need to comply with them as the judge will set the deadlines for compliance at the hearing.   How long will you need to prepare documents for disclosure, witness statements, hearing bundles etc?    

5. Are there any mistakes or gaps or any other potential problems in your claim form or in your response that you need to rectify or that may be picked up on by the judge?  If there are, ideally you should seek legal advice on how to deal with these.

6. Consider if there are preliminary issues you want the tribunal to decide at the hearing.  Ensure any application is made well in advance of the preliminary hearing.  

Do you need to be legally represented at a preliminary hearing?

It is not necessary to have representation at a preliminary hearing and it is quite common for employees to represent themselves, although not so much in the case of employers.   If one party is represented, it can be quite daunting for the unrepresented party, but the tribunal process is intended to be accessible to parties acting on their own behalf.   

The tribunal’s overriding objective is to deal with cases fairly and justly.  As part of this, the tribunal must ensure, as far as reasonably practicable, that the parties are on an equal footing.   This means that, in the context of a preliminary hearing, the judge will be required to provide necessary assistance to the unrepresented party in order to address any imbalance between the two sides.  

However, there is no doubt that employment disputes can often involve the consideration and determination of complex legal issues, even at preliminary hearings.  We therefore strongly recommend that employees or employers obtain legal representation for the preliminary hearing or at the very least in preparation for the hearing.

We particularly recommend you obtain advice where the stakes are high and there are preliminary issues to be decided which could put an end to a party’s ability continue to pursue or defend a claim. 

If you would like any advice or assistance with your Employment Tribunal claim or defending a claim please do get in touch, we are very experienced in helping with preliminary hearings. You can contact us on 01983 897003 and we can assist you wherever you are located in England and Wales.