The importance of preparing for an employment tribunal preliminary hearing is not to be underestimated. While not designed to bring a workplace dispute to a conclusion, the preliminary hearing is intended to help parties prepare for the final hearing, and decisions can still be made that could affect your ability to defend a claim.
The following guide for employers looks at how to prepare for an employment tribunal preliminary hearing, providing practical tips on approaching this stage in the claims process effectively.
What is a preliminary hearing?
As an employer, you may find yourself defending a claim in the employment tribunal by an employee, or even by someone else, such as a job applicant. This could be over various issues, including pay, dismissal or alleged discrimination.
Depending on the complexity of the claim, prior to any final hearing the tribunal may list the matter for a preliminary hearing. Many employers are unfamiliar with the purpose of preliminary hearings or what to expect, although you should receive a letter from the tribunal notifying you of the date for this hearing and explaining what will be discussed.
In simple terms, this hearing will enable the tribunal to understand the basis of the claim and defence, identify the issues and set appropriate case management directions to help the parties prepare for the final hearing. This will include:
- The date and time of the final hearing
- The estimated length of the final hearing
- The witnesses to be called and documents to be disclosed
- A timetable for exchange of statements and documentation.
A preliminary hearing will often be required if the case is complicated or involves an allegation of unlawful discrimination. In complex cases, the hearing can be used for the tribunal to determine specific issues in the case, for example, whether the claimant is disabled in the context of a discrimination claim, or even whether elements of the claim are out of time or should be struck out.
Do I need to attend a preliminary hearing?
Where a preliminary hearing is listed to decide a specific issue, the hearing will usually be conducted in person before the tribunal. Where you have a solicitor or barrister conducting the hearing on your behalf, unless witness evidence is required on a particular point, there is usually no obligation on someone to attend from your company or organisation at this initial stage.
In most other cases, where the preliminary hearing is to set case management directions and a timetable for the final hearing, this will take place via telephone. This will again usually be conducted by the parties’ legal representatives, where instructed, although claimants will often represent themselves. If the claimant is without a lawyer, the tribunal will often list a preliminary hearing in person.
What are the benefits of a preliminary hearing?
Apart from putting in place a clear timetable for the exchange of evidence and a date for the final hearing, the preliminary hearing can be extremely useful for both the tribunal and parties in identifying and narrowing the issues in the case.
The parties may make concessions at a preliminary hearing to help resolve certain issues. The tribunal may also want to explore the possibility of judicial mediation to bring the claim to an early conclusion.
Even though the employment tribunal will not consider the merits of the claim at this stage, it is not uncommon for an indication to be given as to how parts of the claim may be viewed. This, in itself, can help the parties to progress their case or find a sensible basis for settlement without the need for a final hearing.
In cases where a preliminary hearing is listed in person, even where you are not required to attend, by seeing how the tribunal process works in practice can help you to prepare for the final hearing. It can also provide you with the opportunity to enter into without prejudice discussions with the claimant afterwards.
How do I prepare for an employment tribunal preliminary hearing?
Prior to the preliminary hearing the employment tribunal will usually require both parties to complete a written agenda for the hearing in advance. This is a standard document with various questions, including what the claim is for, what compensation is being sought and any preliminary issues to be decided.
The parties will also be asked to suggest what directions are needed to get the case ready for a final hearing. These will typically include when disclosure of documents should take place, the number of witnesses to be called, the dates for exchange of statements and how long the final hearing should be listed for.
If you are legally represented, you will still need to provide your lawyer with witness availability and what dates to avoid for a final hearing. You will also need to provide direct instructions to help them agree the agenda with the claimant.
It pays to be well prepared for a preliminary hearing because the tribunal has the power to strike out parts of a claim or defence. The tribunal can also order either party to pay a deposit order for any elements of the case or defence that are perceived as having little prospects of success. This is a sum of money paid to the tribunal as a condition for continuing to participate in proceedings or pursuing any specified allegations or arguments.
If directions have not been agreed in advance, or there is a substantive issue to be decided by the tribunal, especially where evidence needs to be called, the preliminary hearing is likely to take as much as a full day. This could become costly, so it is best to seek prior agreement wherever possible.
What happens after the preliminary hearing?
Following the preliminary hearing the parties will need to comply with any case management order, by disclosing documents and exchanging witness statements in accordance with the timetable in preparation for a final hearing.
If the claim cannot otherwise be resolved, the matter will proceed to a final hearing as directed. This hearing could last for anything between half a day and several weeks, although in most cases it will take between 1-3 days.
At the final hearing the tribunal will consider in detail the written and oral evidence adduced, and listen to arguments from both sides before reaching a decision. The parties will either be informed of the tribunal’s decision on the day, or this will be sent via post a few days or even weeks after the hearing.
Where a decision is made in the claimant’s favour, you may be required to pay compensation or reinstate that individual where they have been dismissed. You may also be ordered to pay the claimant’s expenses and to pay back any state benefits that the claimant has received in the interim. If complex, the issue of remedies may often be adjourned to another hearing.
If you win the case, you will not usually be awarded any compensation, although you can ask the tribunal to award you costs if the claimant has acted unreasonably or if their claim had no reasonable prospects of success.
How can a preliminary hearing be avoided?
A preliminary hearing does not happen in every tribunal claim. An employment tribunal judge will decide whether a claim requires a preliminary hearing having considered the ET1 (claim form) and the ET3 (defence/response). In some cases the tribunal may simply issue a case management order with standard directions, together with time limits for compliance.
Where a preliminary hearing has been deemed necessary, unless the claim can be settled beforehand this hearing will go ahead, although by agreeing directions in advance this will help to keep time and costs to a minimum.
However, prior to a claimant lodging their ET1 claim form with the tribunal, you will first be made aware that someone wants to make a claim against you by the Advisory, Conciliation and Arbitration Service (ACAS).
ACAS will offer to work with the parties to try to resolve the dispute without the need for legal proceedings. This is called early conciliation. However, both you and the claimant will need to agree to conciliation for this to take place.
Using early conciliation can be a quick and cost-effective way of resolving an employment dispute without the need for any hearing whatsoever. It can also help you to preserve a positive employer-employee relationship where the claimant continues to work for you.
Tips on how to prepare for an employment tribunal preliminary hearing
Where settlement cannot be reached, the following practical tips on how to prepare for an employment tribunal preliminary hearing can help you to make the most of this early opportunity to assess the claim against you, narrow the issues involved and avoid any adverse orders.
- Understand the case – by carefully reviewing the ET1 claim form, you can provide a suitable response to any questions raised at the preliminary hearing and begin to collate the necessary evidence you will need to defend the allegations made against you.
- Plan ahead – most cases are won or lost on the evidence presented, so it is important to carefully consider what written or oral evidence will assist in your defence, and that permission is sought to rely on this evidence at the preliminary hearing, such as the number of witnesses to be called.
- Prepare an agenda – by preparing a suitable agenda and fully completing any preliminary hearing questionnaire, this will assist the employment tribunal in determining the issues and help you to avoid any criticism as the respondent.
- Seek agreement in advance – wherever possible, you should seek to agree in advance any case management directions with the claimant, and make concessions where appropriate in relation to any outstanding issues.
- Secure expert legal advice – by having a lawyer represent you at the preliminary hearing, this will help to protect your interests in advance of the final hearing, especially where important decisions are to be made.
Why legal advice can help
For general guidance on how the employment process works you can call the employment tribunal enquiry line, although they cannot give you legal advice.
By securing expert advice from an employment law specialist early on, you can get to grips with the legal and practical implications of the claim, and make an informed decision as to how you proceed based on your prospects of success.
It is open to you to offer the claimant compensation at any stage throughout the dispute process, either before or after the preliminary hearing. Your lawyer can help you draft the terms of any settlement agreement, ensuring that you are adequately protected from any future claim or comeback.
Having the right legal representation is also crucial to maximising your prospects of defending a claim before the employment tribunal where agreement cannot be reached, including representation at the preliminary hearing.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.