Employment tribunals: preliminary hearings

A preliminary hearing helps to familiarise the tribunal with your case and enables the tribunal judge to give directions to both parties on what more they have to do to get ready for the final tribunal hearing.

We discuss what will happen at a preliminary hearing and what will be expected of you as the claimant. We finish with a template for a preliminary hearing agenda, so you will be well prepared for what to expect.

This is just one of several of our guides on different aspects of employment tribunals. These guides are listed at the end.

Read our main employment tribunal guide first if you are a newcomer to tribunals.

What is a tribunal preliminary hearing?

A preliminary hearing is in essence an administrative meeting with a tribunal judge to begin to give your case some shape and structure, to get it ready for the final hearing

The preliminary hearing takes place after you get the response to your claim from the other side. 

 

Where does a preliminary hearing 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 in person at this stage.

 

What is the aim of a preliminary hearing?

From the tribunal’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 a settlement agreement), and the complexity of the issues involved. 

If your case is straightforward, it may not need a preliminary hearing and you will be informed in advance by the tribunal if there is to be one.

The judge will lead the preliminary hearing, and also direct both sides on the steps that they each need to take in order to take the case to a final hearing, together with the dates by which each step will have to be taken.

Amongst other things, you are likely to be asked:

• to provide information about how many witnesses you want to call to give evidence at the final hearing.
• to agree on how and when you will ‘disclose’ case-related documents to the other side (and they have to do likewise by the same date).
• to agree on the dates by which all witness statements have to be submitted (usually 2-4 weeks before the hearing date).
• to determine what documents will form part of the final hearing ‘bundle’ of documents.
• to produce a Schedule of Loss if you haven’t already done so. (See our guide on preparing your schedule of loss.)

 

All of the above information will form part of an agreed timetable between the two parties involved and the judge, which you must stick to as closely as possible.

It helps the judge to determine how long the tribunal hearing will need to last and to agree on a date with the two parties for the event.

The preliminary hearing also provides an opportunity for you to ask the judge and the other side about any changes you want to make to the claim which you originally submitted.

There is no guarantee that any such requests for changes to your claim will be granted but it is always worth asking if there was a genuine error or oversight. (See this useful article for more about how to change a tribunal claim.)

The judge is likely to consider at this stage whether judicial mediation might be an appropriate way forward, rather than an employment tribunal hearing.

Remember that the judge hearing the preliminary hearing is unlikely to be the same judge who will hear the final hearing. So it is important to be as well prepared as you can for the hearing, even at this preliminary stage.

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.

What’s on the agenda at preliminary hearings?

The current template (valid in 2022) for the agenda 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

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

1.1
Are the names of the parties correct? Is the respondent a legal entity?

If not, what is the correct name?

1.2
Should any person be joined or dismissed as a respondent? If yes, why?

2. The claim and response

2.1
What complaints (claims) are brought? This should be just the complaint title or head (eg unfair dismissal).

If any are withdrawn, say so.

2.2
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.

2.3
Has any necessary additional information been requested?  If not, set out a limited, focused 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

3.1
If successful, what remedy does the claimant seek? This means eg compensation or reinstatement (where that is possible) etc.

3.2
What is the financial value of the monetary parts of the remedy? All parties are encouraged to be realistic.

3.3
Has a schedule of loss been prepared?  If so, please provide a copy.<

3.4
Has the claimant started new work?  If yes, when?

4. The issues

4.1
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.

4.2
Are there any preliminary issues that 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

5.1
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?

5.2
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

6.1
Have lists of documents been exchanged? If not, date/s for exchange of lists<

6.2
Have copy documents been exchanged? If not, date/s or exchange of copies:

• for any further preliminary hearing
• for the final hearing

6.3
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?

6.4
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

7.1
How many witnesses will each party call? Who are those witnesses?

Why are they needed?

7.2
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)

8.1
Time estimate for final hearing, with intended timetable.

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

8.2
Dates to avoid (with reasons) or to list. Any dates pre-listed by the Tribunal?

9. Other preparation

9.1
Should there be admissions and/or agreed facts? If yes, by what date/s?

9.2
Should there be a cast list? From whom and when?

9.3
Should there be a chronology? From whom and when?

9.4
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

10.1
Is this a case that might be suitable for judicial mediation?

10.2
Are the parties interested in the possibility of judicial mediation?

10.3
JUDICIAL USE ONLY
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 by way of a Subject Access Request.

(See our guide on Subject Access Requests and templates for you to adapt for your own subject access request).

 

Next steps

Whether you want help to prepare for your employment tribunal preliminary hearing, or any other aspect of your employment tribunal case, then Monaco Solicitors can help.

We are a reputable law firm, specialising in employment law only and representing only employees (not employers).

We have years of experience in negotiating settlements and in winning employment tribunal cases for a wide variety of types of employment law claim and for employees from all kinds of employment sectors.

If you would like to find out more about how we can help you, get in touch for an initial informal discussion with a member of our friendly team:

• By this website link
• By phone on  020 7717 5259
• By email: communications@monacosolicitors.co.uk