Preliminary hearings are commonly now listed as a matter of course, particularly for more complex claims that are brought in the Employment Tribunal, for example claims including a whistleblowing or discrimination element.
Many employers are unfamiliar with the purpose of preliminary hearings or what to expect. We’ve set out below a guide to the preliminary hearing process to answer some of employer’s frequently asked questions on this topic.
Preliminary hearings now bring the two previous categories of initial hearings – case management discussions and pre-hearing reviews into one.
Preliminary hearings are most commonly used to allow the Employment Tribunal to identify the issues in the case, and set case management directions to enable the parties to get the case ready for the final hearing.
For example, in a case where the employee’s claims are unclear from the ET1, a preliminary hearing will often be used to clarify the basis of the employee’s claim, so the Employment Tribunal and the employer understand the claims faced.
Preliminary hearings can also be arranged for the Employment Tribunal to consider and make a decision on initial issues in the case, for example to determine whether the employee is disabled or whether elements of the employee’s claim are out of time.
In most cases Preliminary Hearings take place via telephone. The Employment Judge will not expect anyone from the company to attend the telephone hearing and this would be unusual. The matters will be discussed by the parties’ representatives where they are represented. Often the employee will represent themselves.
Where a preliminary hearing is listed to decide a specific issue, for example whether the employee is disabled, the hearing will be conducted at the Employment Tribunal in person or via a remote video hearing. Again there is usually no obligation for someone for the company to attend, unless witness evidence on any points will be required, which you would be informed of in advance. However, if you would like to do so you may attend and this can be a useful opportunity to gain an idea of how Employment Tribunal proceedings are run.
Prior to the preliminary hearing the Employment Tribunal will usually require both parties to complete an agenda for the hearing. This is a standard document which is essentially a list of questions about the claim, for example, what the claim is for, what compensation the employee is seeking and what preliminary issues there are that need to be decided, for example whether the employee is disabled. It then also asks both parties to suggest what directions are needed to get the case ready for a final hearing, for example when disclosure of documents should take place, the number of witnesses and when witness statements should be exchanged and how long the final hearing should be listed for.
You are therefore likely to be asked for input on these issues and to provide practical information such as any dates that witnesses are not available to attend a final hearing.
The parties are encouraged to agree the agenda where possible. We will therefore usually recommend that we send a draft of the agenda to the employee or their representative for them to comment on, and ideally confirm their agreement to in good time ahead of the preliminary hearing.
In most cases it will also be helpful for the parties to agree a list of the legal and factual issues in the case that the Employment Tribunal will need to decide at the final hearing.
Preparing for and attending a preliminary hearing is generally useful to progress the case. The employee will be required to provide a greater understanding of the issues in their claim if this has otherwise not been clear. It may become apparent that some issues can be resolved without the need for a final hearing, for example if the employee concedes that aspects of their claim cannot proceed.
Although the purpose of a preliminary hearing is not for the Employment Judge to consider the merits of the case, they will sometimes make an “off the cuff” remark or approach matters in a way that gives us an indication of how parts of the claim will be viewed. They can also be useful to give the employee an understanding of the Employment Tribunal process and the tests that they will need to satisfy to succeed in their claim.
Where the preliminary hearing takes place in person, discussions after the preliminary hearing with the employee can also be useful where appropriate to gauge whether there is any benefit in entering into without prejudice discussions.
If you have any further questions about preliminary hearings or need assistance in relation to an ongoing Employment Tribunal matter please contact one of the Employment team.
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