Employment tribunals: preliminary hearings

What is a Preliminary Hearing?

When you get the response to your claim from the other side, this is the time the tribunal will want to get things moving towards a final hearing. The next step along the way is the Preliminary Hearing. A preliminary hearing is in essence an administrative hearing to allow a judge to begin to give the case some structure.

Where does it take place?

Although it is called a hearing, it almost always takes place by way of a telephone call, which means that you dial into a 3-way telephone call with the other side and the Judge, so you normally need not worry about attending the court at this stage.

What is the aim of the preliminary hearing?

From the judge’s point of view, the aim of the preliminary hearing is to familiarise the judge with what the case is all about; its value (i.e. how much money you are asking for in compensation or settlement), and the complexity of the issues involved.

At the preliminary hearing, both sides will have to agree the steps that will need to be taken in order to take the case to a final hearing. That means you will need to provide information about how many witnesses you might want to call to give evidence at the final hearing, as well as how and when you will send each other documents and witness statements that will form part of the final hearing ‘bundle’.

The judge will also want to agree how long, and on what date, the hearing will take place. All that information will form part of an agreed timetable between the two parties involved and the Judge that you must stick to as closely as possible.

It is also an opportunity to tell the judge and the other side about any changes you want to make to the claim which you submitted. You should remember that the judge hearing the preliminary hearing is not the judge who will hear the final hearing and they are sometimes  quite helpful, especially if you don’t have solicitors representing you. So it is important to be as prepared as you can, even at this preliminary stage.

Of course, it’s not as simple as first meets the eye, because if you know your way round the system you can give yourself the advantage in a case by making the right kind of applications at a preliminary hearing. For example you might want to join two similar claims together, or you might want to apply for Further Information from the employer.

To get a better idea of things that will be discussed and need to be agreed upon at the preliminary hearing, you will be expected to complete an agenda and send it to the other side before the hearing. The agenda will normally be sent to you along with the hearing date.

The current tribunal template for case management at preliminary hearings is reproduced below, so that you know what to expect.

AGENDA FOR CASE MANAGEMENT AT PRELIMINARY HEARING Rules 29 – 40 and 53 – 56 Employment Tribunals Rules of Procedure 2013

It may help the efficient management of the case if you complete this agenda, as far as it applies, and send it to every other party and the Tribunal to arrive at least 7 days before the preliminary hearing (“ph”).  A completed agreed agenda is particularly helpful.
1.      Parties

Are the names of the parties correct?Is the respondent a legal entity?

If not, what is the correct name?

Should any person be joined or dismissed as a respondent?If yes, why?

2.      The claim and response

What complaints (claims) are brought?This should be just the complaint title or head (eg unfair dismissal).

If any are withdrawn, say so.

Is there any application to amend the claim or response?  If yes, write out what you want it to say.Any amendment should be resolved at the ph, not later.

Has any necessary additional information been requested?  If not, set out a limited, focussed request and explain why the information is necessary.If requested, can the relevant information be provided for the ph?  If so, please do.

3.      Remedy

If successful, what remedy does the claimant seek?This means eg compensation or re-instatement (where that is possible) etc.

What is the financial value of the monetary parts of the remedy?All parties are encouraged to be realistic.

Has a schedule of loss been prepared?  If so, please provide a copy.<

Has the claimant started new work?  If yes, when?

4.      The issues

What are the issues or questions for the Tribunal to decide?It is usually sensible to set this out under the title of the complaint/s.

Are there any preliminary issues which should be decided before the final hearing?If yes, what preliminary issues?

Can they be added to this preliminary hearing?  If not, why not?

5.      Preliminary hearings

Is a further preliminary hearing needed for case management?NB This should be exceptional.

If so, for what agenda items?

For how long?

On what date?

Is a further substantive preliminary hearing required to decide any of the issues at 4.1?If so, for which issues?

How long is needed?

Possible date/s?

6.      Documents and expert evidence

Have lists of documents been exchanged?If not, date/s for exchange of lists<

Have copy documents been exchanged?If not, date/s or exchange of copies:

  • for any further preliminary hearing
  • for the final hearing

Who will be responsible for preparing

  • index of documents?
  • the hearing bundles?

Date for completion of this task and sending a copy to the other parties?

Is this a case in which medical evidence is required?Why?

Dates for

  • disclosure of medical records
  • agreeing any joint expert
  • agreeing any joint instructions
  • instructing any joint expert
  • any medical examination
  • producing any report
  • asking questions of any expert
  • making any concessions

7.      Witnesses

How many witnesses will each party call?Who are those witnesses?

Why are they needed?

Should witness statements be:- exchanged on the same date?- provided sequentially?

Dates for exchange:

  • for further preliminary hearing
  • for the final hearing

8.      The hearing(s)

Time estimate for final hearing, with intended timetable.

Is a separate hearing necessary for remedy?  If yes, why?

Dates to avoid (with reasons) or to list.Any dates pre-listed by the Tribunal?

9.      Other preparation

Should there be admissions and/or agreed facts?If yes, by what date/s?

Should there be a cast list?From whom and when?

Should there be a chronology?From whom and when?

Are there special requirements for any hearing?(eg interpreter, hearing loop, evidence by video, hearing partly in private  under rule 50)If yes, give reasons.

10.    Judicial mediation

Is this a case that might be suitable for judicial mediation?

Are the parties interested in the possibility of judicial mediation?

Judge to consider whether judicial mediation criteria are met; if so, discuss with the parties; record/direct their responses.Refer to REJ, if appropriate

11.    Any other matters

In conclusion

Of course, it’s not totally straightforward, because a canny practitioner can give themselves the advantage in a case by making the right kind of applications at a preliminary hearing. For example, you might want to join two similar claims together to make them both stronger, or apply for further information from the employer (see our article on Subject Access Requests and templates for you to adapt for your own subject access request).

If you are unsure of the best way to go about a preliminary hearing, do get in touch to see how we might help you with your case.

Our helpful guides:
020 7717 5259

Request a free consultation now

Request callback