A Preliminary Hearing in the context of an Employment Tribunal claim is a hearing (or hearings) which takes place some time before the trial of the employment claim.

What can happen at a Preliminary Hearing is determined by the Tribunal Rules of Procedure 2013 contained here. Rules 53-56 are the key sections, particularly Rule 53 which states:

(1) A Preliminary Hearing is a hearing at which the Tribunal may do one or more of the following:
(a) conduct a preliminary consideration of the claim with the parties and make a case management order (including an order relating to the conduct of the final hearing);
(b) determine any preliminary issue;
(c) consider whether a claim or response, or any part, should be struck out under rule 37;
(d) make a deposit order under rule 39;
(e) explore the possibility of settlement or alternative dispute resolution (including judicial mediation).
(2) There may be more than one preliminary hearing in any case.
(3) “Preliminary issue” means, as regards any complaint, any substantive issue which may determine liability (for example, an issue as to jurisdiction or as to whether an employee was dismissed).

Essentially, the Preliminary Hearing helps the Employment Judge to comprehend what your case is all about, but it can be much more than that. A Preliminary Hearing doesn’t happen in every Tribunal claim. An Employment Tribunal Judge will decide whether a claim requires a Preliminary Hearing after reading the ET1 (claim) and/or the ET3 (Defence/Response).

Usually there will be a Preliminary Hearing in discrimination, whistleblowing and complex unfair dismissal claims. Also, if the Claimant or Respondent doesn’t have a solicitor then the Employment Judge is more likely to set a Preliminary Hearing.

It pays to be well prepared for a Preliminary Hearing, because the Employment Judge has the power to strike out (kill) parts of a claim and even strike out (kill) part of the Respondent’s Defence (ET3). In addition, the Employment Judge, who will hear the Preliminary Hearing alone, can order that what they perceive as weak elements of a claim require a Deposit Order. A Deposit Order means that a Claimant must pay some money to the Employment Tribunal in order to continue with that element of their claim, otherwise they will be automatically struck out.

Normally, an Employment Tribunal will send questionnaires in advance of the Preliminary Hearing to both parties and request that they are completed and returned to the Employment Tribunal some days before the Preliminary Hearing is to take place. This helps the Employment Judge to grasp the key issues, making for a smoother and often faster Preliminary Hearing. A Employment Tribunal Judge is likely to take a dim view of any party which fails to complete a questionnaire.

It is usually at a Preliminary Hearing in which the Employment Judge sets the timetable (directions) to trial. Therefore, if you are attending a Preliminary Hearing it best practice to have all the information to hand, such as: your availability; your witness availability; whether you need medical records and if so how long they will take to get; when your lawyers are available; when you will have all the information for the Schedule of Loss; whether you or any of the witnesses need reasonable adjustments and/or interpreters; which witnesses you want to call; and whether there are likely to be any issues in getting documents (disclosure) from the other side; how many days the parties think that the trial will last for; etc.

If the parties have legal representation, then the Preliminary Hearings are more often taken place over the telephone. However, if one of the parties has not instructed a solicitor, then the Preliminary Hearing is much more likely to take place in person (which is usually more costly to the parties). Usually the correspondence from the Employment Tribunal will state how long the Preliminary Hearing is likely to last. It is not unusual for a Preliminary Hearing to last for one day.

In addition, particularly in discrimination claims, the Employment Tribunal Judge is likely to want to know whether the parties want to try Judicial Mediation of the claim.

If you don’t understand what you have received from the Employment Tribunal, then write or telephone them, as the clerks are usually very helpful.

If there is the possibility that the Claim is brought out of time, then it might be a Preliminary Hearing that the Employment Judge strikes out (kills) the claim without it going to trial. It is possible for a Claimant to instruct either a solicitor or a direct access barrister just for the Preliminary Hearing.

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