There are several different stages you will go through when making a claim in the Employment Tribunal. You may have been given notice of a Preliminary Hearing, but what is it? What does it mean? What will be discussed and what do you have to do? At Lincs Law Employment Solicitors, we want to help and, therefore, in this post we have set out information and assistance about Preliminary Hearings.
Whilst we always hope our posts are helpful, nothing beats discussing your situation with a fully qualified Employment Solicitor. Just call us on 01522 440512 and we will be happy to have an free enquiry call with you.
Preliminary Hearings Overview
Some straightforward claims (money claims or simple unfair dismissal) can be listed directly to a Final Hearing. However, for many claims, especially if they are for discrimination, whistleblowing or there is some element which makes them complex, some sort of Preliminary Hearing will be needed.
A Preliminary Hearing is not the same as a Final Hearing. A Final Hearing will judge the claim and make a decision about whether the Claimant has won or lost. As the name suggests, a Preliminary Hearing deals with those matters which are necessary to make arrangements and decisions in order to enable the Final Hearing (if necessary) to be undertaken in a sensible and proportionate way.
Broadly there are two types of Preliminary Hearing at the Employment Tribunal. The first (and most common) is a Preliminary Hearing – Case Management. Essentially, this hearing deals with the practicalities and logistics to get the claim ready for a Final Hearing.
The second type of Preliminary Hearing is where the Employment Tribunal need to make a decision on a preliminary point in advance of a Final Hearing. For example, this could be to:
- determine whether the Claimant was an employee (in a claim for unfair dismissal);
- determine whether the Claimant was/is a disabled person (in a claim for discrimination); or
- determine who is the correct Respondent in circumstances where there is a dispute about an employer’s identity.
Preliminary Hearing – Case Management
At a Preliminary Hearing – Case Management the Employment Tribunal will want to discuss how the claim is going to progress through to the Final Hearing. At the hearing, a timetable will be set and agreed for when the parties have to undertake certain tasks, which are referred to as Case Management Orders.
It is up to the Employment Tribunal what format the hearing takes. For some cases the parties will be required to physically attend the Employment Tribunal Hearing Centre. However, these types of hearings are more often by video or telephone. Your Notice Of Hearing from the Employment Tribunal will give you all the details, including logging on information and passwords if necessary.
For most Preliminary Hearings you will need to complete an agenda document (usually sent to you at the same time as your Notice Of Hearing). That is completed by both parties and can sometimes be agreed between the parties in advance.
The Preliminary Hearing Agenda will ask about:
- The Parties: Whether the right people/organisations have been identified and whether there is any need to change a party.
- The ET1 Claim And ET3 Response: Whether there are any issues to be addressed and/or whether any applications are being made for further information.
- Remedy: Is there a Schedule of Loss and, if not, when one will be provided.
- The Claims & Issues: This is incredibly important as what is agreed will become the agenda/questions for the Employment Tribunal at the Final Hearing. This breaks down the various claims into their constituent parts so all parties are clear about what must be proven and by whom.
- Further Preliminary Hearings: Some matters will need to move on to a further Preliminary Hearing to decide a preliminary point as above (employment status, disability etc).
- Documents: Dates for exchange of documents and for the parties to agree a bundle for the Final Hearing will be given.
- Witnesses: Identification of witnesses, consideration of witness orders (if necessary) and dates for the parties to exchange witness statements will be given.
- Final Hearing: Consideration of length of Final Hearing, will it consider merits only or merits and remedy, witness availability, listing, in person or video, adjustments for disabled parties or witnesses etc
- General Applications: This could be anything from a party requiring certain documents to an application for a deposit order or strike out.
- Voluntary Judicial Assessment: This is where parties agree to an Employment Tribunal Judge undertaking an early assessment of the strengths, weaknesses and risks of their respective positions. Both parties will need to agree.
- Voluntary Judicial Mediation: This is where parties agree to a mediation process facilitated by an Employment Judge. Both parties will need to agree.
At the Preliminary Hearing – Case Management the Employment Judge will go through the agenda with the parties before making decisions about the conduct of the matter going forwards and/or making Case Management Orders.
Preliminary Hearing – Preliminary Issue
Where a Preliminary Hearing is listed to decide a preliminary issue, this is very different to the Preliminary Hearing – Case Management described above. This hearing will make decisions and judgments which are likely to affect whether the Claimant will be allowed to pursue their claim and in what way.
Obviously, how the Preliminary Hearing is conducted will depend upon the issue it is deciding. Also, they can be in person or by video.
Using the example above of employment status (but it could be any type of preliminary issue) I set out below how the Preliminary Hearing will work.
Only employees can make a claim of unfair dismissal under the Employment Rights Act 1996. If there is a dispute about whether the Claimant is an employee, this will be considered as a preliminary issue. There would be little point in preparing for a full Final Hearing dealing with the circumstances of the dismissal etc if the Clamant was not an employee.
In the above circumstances, the Preliminary Hearing will consider evidence from documents and witnesses about employment status only. They will also consider the parties’ representations on the applicable law. Based on that evidence and applying the necessary legal tests, a decision will be made whether the Claimant was or was not an employee. If they were an employee, they will be allowed to continue with their unfair dismissal claim to a Final Hearing. If they were not, their claim for unfair dismissal will be dismissed as they did not have the requisite employment status to pursue the claim.
Lincs Law Employment Solicitors Can Help
If you have a Preliminary Hearing listed and are in need of some assistance, please call us on 01522 440512 for a no obligation, free enquiry and we’ll be happy to help. Alternatively, if you would like more information about the Employment Tribunal process and how we can help, please visit our website at https://lincslaw.co.uk/services/employees/employment-tribunal-claims/
Sally Hubbard
Managing Director, Specialist Employment Solicitor
Lincs Law Employment Solicitors
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