Preliminary Hearings – Claimants

In many cases, the Tribunal will, at an early stage, hold a Preliminary Hearing (“PH”). This can be by telephone if the parties are professionally represented, or face to face at the Tribunal’s premises.

When will a PH not be held?

In a straightforward ordinary unfair dismissal claim there will not normally be any reason to hold a PH,  and once you have issued your claim and the Respondent has filed its Response, the Tribunal will send out what are called “Standard Directions.” This will set out the time limits for the filing of documents and witness statements as well as a date when the trial will be heard. The “Directions” tell you what to do and when you have to do it.

When will a PH be held?

In more complex, cases, the Tribunal will normally hold a PH  to identify the issues to be determined at the full hearing, and to discuss the procedural aspects of the claim such as when witness statements should be exchanged.

For example, PHs are usually held for discrimination claims so as to identify what acts of discrimination the Claimant is relying upon.

In most circumstances, prior to the PH the Tribunal will send to the parties a “Case Management Directions” (“CMD”) Agenda to complete. This is a questionnaire you fill in about the case and send back to the ET. The purpose is to ensure that the Judge knows what the dispute is about.

This is a very important process because this questionnaire will be used to draw up a “list of issues” for trial and if an important part of your claim does not get onto the list of issues, it cannot be heard at the full trial. In a discrimination case in particular, the law is very complicated, so you will need to get legal advice before going along to a PH.

What can happen at the PH? 

The Judge conducting the PH has a wide range of powers available. The judge can order:

  • that one party provides the other with further information about its claim;
  • that either party can amend their claims; and
  • that each side reveals what relevant documents it has in its possession and allows the other side to take a copy (disclosure).

The Judge will also order that one party prepares a “trial bundle.” This is a file or files containing all the documents relevant to the case. This is a very time consuming task and many Judges will, if asked, order the Respondent to do this as it has more resources.

The Judge at the PH can make a costs order against one of the parties, if for example they are not properly prepared for the hearing.

It is important that you are properly prepared for the PH as the Judge has the power to make a costs order (you have to pay the Respondent’s costs) against you if you are not.

The PH  is a very helpful hearing as it helps to clarify the issues i.e. what particular claims you are bringing, and also the Respondent’s Response.  For example in a disability discrimination claim, the Judge will want to know from the Respondent agrees that that you was disabled, and if not then the Judge will make an order for medical evidence to be obtained so this can be determined.

What are the consequences for non-compliance with orders made at the PH? 

Once a Judge at the PH has made an order, then the parties must comply with it. If a party does not comply with an order, then the Tribunal can do one of the following:

  • make a costs order against the offending party, meaning they have to pay the other side’s costs; and/or
  • make what is called an “unless order.” This means that unless the party to whom the order is addressed complies with the order, their case  will be “struck out” (“dismissed”) without further notice.

Will the Judge evaluate my Claim at the PH? 

Yes – the Judge conducting the PH has powers to strike out parts of the claim which he thinks have not chance of success  and to limit what claims are heard at the full hearing.  This will usually happens if the Respondent makes an application to strike out the whole case or some of the Claims.

The test the Judge will consider is whether the Claim has a “reasonable prospect of success.” It is common for a Judge at a PH to determine whether the Claim or parts of the Claim were filed within the time limits or whether, in a disability discrimination case, the Claimant was actually disabled.

An order striking out a claim is a draconian one. It means the claim fails before it is heard. For this reason the Tribunal will always exercise this power with caution.  This is particularly so in cases of discrimination where it will be difficult for a Judge to come to a view as to the merits of a claim without first hearing all of the evidence.

Note that ETs are now sensitive to the costs incurred by employers facing weak claims and will therefore prefer to hold a one day PH to consider whether the documents show that the Claimant’s is so weak that it should be dismissed. They prefer to do this rather than allow 10 days of its time to be used up on a weak case – saving the Tribunal and the employer time and money.

If the Judge at the PH is of the opinion that any part of a claim has little prospect of success, as opposed to no reasonable prospect of success, then he can make an order against that party requiring the party to pay a deposit of an amount not exceeding £1,000. This is a sum which must be paid into the Court but will be returned unless a costs order is made against the Claimant after the final hearing. Most Claimants will find it very difficult to pay a deposit and you should argue vigorously against the Tribunal making such an order.

As the PH is a substantive hearing, it is strongly advised that Claimants obtain legal advice and legal representation for the hearing.  The reason for this is that potentially your whole claim or a part of it could be struck out at the PH and in some cases that will be the end of the matter. If a claim is struck out, there will be no further hearings.



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