Preliminary hearings in the employment tribunal
Preliminary hearings in the employment tribunal

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Preliminary hearings in the employment tribunal
  • Scope of preliminary hearings
  • Definition of 'preliminary issue'
  • What causes a preliminary hearing to be held
  • Requirements to give notice of date and issues
  • Composition of employment tribunal
  • Whether hearing will be public or private
  • Preliminary hearings relating only to general case management orders
  • Limitations on evidence and use of sample incidents
  • Use of pro forma agenda documents
  • More...

Coronavirus (COVID-19): All proceedings in employment tribunals in England, Wales and Scotland during the coronavirus (COVID-19) pandemic and until further notice are operating in accordance with the Presidential guidance and directions now issued, which profoundly affect normal practice. See Practice Note: Operation of employment tribunals during the coronavirus (COVID-19) pandemic for full information.

The ET Rules classify all hearings as either:

  1. a preliminary hearing (the subject of this practice note)

  2. a final hearing (see Practice Notes: Preparation for employment tribunal final hearing and Procedure at employment tribunal final hearing)

The scope of what these two types of hearing may cover is different, as are the ET Rules which govern their procedure. These aspects are discussed in this practice note and (as regards final hearings) in the two practice notes mentioned above.

Some rules are common to both preliminary and final hearings, and some other procedural issues also arise in both. See Practice Note: Conduct of employment tribunal hearings—general for coverage of these aspects of tribunal procedure.

There may be more than one preliminary hearing in any case.

A tribunal conducting a preliminary hearing may order that it be treated as a final hearing, if:

  1. the tribunal is properly constituted for the purpose (ie it has two lay members sitting as well as an Employment Judge, if the final hearing is hearings claim(s) of a

  • nature that would requires a three-person tribunal—see Procedure at employment tribunal final hearing—Composition of employment tribunal for further information), and

    1. it is satisfied that neither party will be materially prejudiced by the change

  • Scope of preliminary hearings

    The tribunal may do one or more of the following at a preliminary hearing:

    1. conduct a preliminary consideration of the claim with the parties and make a case management order (including an order relating to the conduct of the final hearing)

    2. determine any 'preliminary issue' (see Definition of 'preliminary issue', below)

    3. consider whether a claim or response, or any part of either or both, should be struck out under rule 37 (see Practice Note: Striking out and unless orders in employment tribunal proceedings for full information on the power to strike out)

    4. make a deposit order under rule 39 (see Practice Note: Deposit orders in the employment tribunal for full information on this topic)

    5. explore the possibility of settlement or alternative dispute resolution (including judicial mediation)

    The ambit and operation of the general case management powers that a tribunal it may exercise at a preliminary hearing is considered in full in the practice note Employment tribunal case management.

    For information on when judgments and orders made at preliminary hearings take effect, and when any money that is ordered under them must be paid, see Conduct of employment tribunal hearings—general—When judgments and orders take effect and when money must be paid.

    For information on the consequences of a failure to comply with a case management order, see Employment tribunal case management—Failure to comply with an order or rule: the consequences.

    In essence, because of the way in which the rules operate, preliminary hearings subdivide into two types, the nature of both of which is discussed in more detail below:

    1. preliminary hearings relating only to general case management orders

    2. Preliminary hearings in the employment tribunal—Preliminary hearings involving preliminary issues or strikeout

    Definition of 'preliminary issue'

    As noted above, one of the things a tribunal may do at a preliminary hearing is determine a 'preliminary issue'.

    In this context, 'preliminary issue' means, as regards any complaint, any substantive issue which may determine liability, eg an issue as to jurisdiction or as to whether an employee was dismissed.

    What causes a preliminary hearing to be held

    A preliminary hearing may be arranged by the tribunal on its own initiative at any time.

    The previous wording of rule 54 (which applied until 8 October 2020) expressly stated that the preliminary hearing could also be listed by the tribunal as a result of an application by a party. Although the reference to an application by a party has been removed, it appears that this possibility will nonetheless continue to be the case both as a necessary matter of practicality and because such applications are still envisaged by another amendment made at the same time (Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, SI 2013/1237, reg 10B(f)). However, it would be helpful to have further clarity on this issue by way of Presidential Guidance or judicial comment.

    Requirements to give notice of date and issues

    In the previous wording of rule 54, which applied up until 8 October 2020, the tribunal had to give parties a certain amount of notice of the date of a preliminary hearing and also (within that notice) specify the preliminary issues that are to be, or may be, decided at the hearing.

    The removal of these provisions has the effect of giving the tribunal more flexibility on the listing of preliminary hearings, eg if a hearing needs to be fixed at short notice or if flexibility is needed as to what will be determined at the hearing. However, it would appear to be in accordance with the overriding objective, practicality and general principles of fairness, for parties still to be, wherever possible:

    1. given reasonable notice of the listing of the hearing to arrange attendance and have time to prepare, and

    2. informed (or in the absence of notification from the tribunal for there to be an agreed understanding between the parties) of the issues to be determined (or put forward for determination) at the preliminary hearing

    Composition of employment tribunal

    Normally, a preliminary hearing will be conducted by an Employment Judge alone.

    However, where notice has been given (see Requirements to give notice of date and issues, above) that any preliminary issues are to be, or may be, decided at the hearing (see Definition of 'preliminary issue', above):

    1. a party may request in writing that the hearing be conducted by a full tribunal, in which case

    2. an Employment Judge must decide whether that would be desirable (ie the judge has a discretion whether to accede to the request, or to refuse and order that it be conducted before an Employment Judge alone instead)

    If an Employment Judge alone mistakenly conducts a preliminary hearing which, as a result of an earlier successful application should have been listed before a full tribunal, this procedural error may invalidate any decision taken at the hearing. Whether the error is sufficiently fundamental to invalidate a decision will depend on whether it is possible to determine what would have happened if the mistake had not been made, ie whether it could be said that a three-person tribunal would have reached the same decision.

    Whether hearing will be public or private

    Normally, a preliminary hearing will be conducted in private.

    However, in two situations, a preliminary hearing must be held (at least partly) in public:

    1. where the hearing involves the determination of a preliminary issue (see Definition of 'preliminary issue', above):

      1. any part of the hearing relating to the determination of that issue must be in public, but

      2. the tribunal has a discretion to direct that the entirety of the hearing be in public

    2. likewise, where the hearing involves consideration of whether a claim or response, or any part of either or both, should be struck out under rule 37 (see Practice Note: Striking out and unless orders in employment tribunal proceedings):

      1. any part of the hearing relating to the determination of whether any striking out should occur must be in public, but

      2. the tribunal has a discretion to direct that the entirety of the hearing be in public

    However, even in those two situations, the requirement to hold the relevant part(s) of the hearing in public may not apply to the extent that the tribunal decides, or a Minister directs, under rule 50 or rule 94, that the parts of the hearing that would otherwise have been public should be held in private, because it is necessary in the interests of justice, or in order to protect an individual's human rights, or for reasons of confidentiality, or for reasons relating to national security. For further information, see Practice Note: Private hearings, restricted reporting, protecting individuals’ identity and national security: employment tribunals.

    Preliminary hearings relating only to general case management orders

    Where a preliminary hearing does not involve the determination of a preliminary issue, or any possibility of some or all of the claim or response being struck out, it will be in private and heard by an Employment Judge alone.

    The purpose of such a hearing is usually to deal with general case management orders, ie a directions hearing to determine various procedural issues governing the preparation of proceedings for trial, and perhaps also the conduct of the trial itself.

    Generally, these hearings are informal and are conducted in the way the Employment Judge considers most appropriate.

    There is power to conduct such hearings by phone (or by other means of electronic communication—see Conduct of employment tribunal hearings—general—Use of video conferencing, telephones etc to conduct a hearing), and there is a growing practice to encourage parties to conduct such hearings by phone rather than requiring the parties to attend, where the judge regards that as appropriate.

    The sorts of issues that may arise for discussion and determination at such hearings include the following:

    1. adding or removing parties, or amending party names: see Changing parties and participation by third parties in employment tribunal proceedings—Addition, substitution and removal of parties

    2. identifying what matters are at issue in the case and need to be resolved by the tribunal. This may involve a direction for a clear and comprehensive list of issues in the case to be prepared and agreed by the parties, probably subject to tribunal approval (see 'List of issues' below)

    3. whether any amendments are required to the ET1 or ET3: see Making changes or additions to the claim or response: employment tribunals—Amending the claim and Making changes or additions to the claim or response: employment tribunals—Amending the response

    4. whether any additional information is required from any party regarding their case (ie information not already included in the ET1 or ET3, or not satisfactorily pleaded); see Making changes or additions to the claim or response: employment tribunals—Provision of additional information (further and better particulars)

    5. directions for obtaining information in equality claims (the statutory question and answer procedure is no longer available except for the purposes of claims that relate to a contravention occurring before 6 April 2014, but parties or potential parties to workplace equality disputes may still ask and answer questions in a way very similar to that which occurred under the former, now repealed, statutory mechanism—see Practice Note: Obtaining information for equality claims)

    6. establishing what remedy the claimant seeks, which may include:

      1. ascertaining the value of the claim

      2. making directions as to service of a schedule of loss, and perhaps a counterschedule

      3. directions regarding evidence of mitigation

    7. ascertaining whether there are any preliminary issues which should be determined in advance of the final hearing (see Preliminary hearings involving preliminary issues or strikeout, below) and, if so, making arrangements for a further preliminary hearing at which they will be determined

    8. deciding whether the whole or any aspect of proceedings should be stayed for any reason (eg where there are parallel High Court proceedings—see Conduct of employment tribunal hearings—general—Parallel tribunal and High Court proceedings)

    9. directions as to disclosure (see Practice Note: Disclosure in employment tribunal proceedings)

    10. directions re witnesses (see, Practice Note: Witnesses—employment tribunals):

      1. ascertaining the number of witnesses each party intends to call, their names, and perhaps some indication as to why their evidence is thought to be relevant (the tribunal will be keen to exclude irrelevant witnesses, and may encourage parties to limit the number of witnesses, even if their evidence is relevant, if there appears to be duplication—see further under 'Limitations on evidence and use of sample claims', below)

      2. making directions for preparation and exchange of witness statements: see Witnesses—employment tribunals—Preparation and exchange of witness statements

      3. making any required witness orders: see Witnesses—employment tribunals—Witness orders

      4. ascertaining if an interpreter will be required

    11. directions as to expert evidence (medical and/or otherwise): see Witnesses—employment tribunals—Expert witnesses

    12. directions regarding the final hearing:

      1. directions as to trial bundle preparation: see Preparation for employment tribunal final hearing—Bundles

      2. ascertaining the hearing's likely length

      3. deciding whether liability and remedy will be tried in one continuous hearing or in two separate final hearings (ie a liability hearing then, if the claimant wins, a remedy hearing)

      4. setting dates for the final hearing(s)

      5. deciding the composition of the tribunal ie whether the final hearing will be listed before an Employment Judge sitting alone or with lay members (see Employment tribunal case management—General case management powers of the tribunal: Composition of employment tribunal

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