Law guide: Employment

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Steps before the hearing

Steps before the hearing

When the employee lodges a claim

England, Wales and Scotland

Once an Employment Tribunal receives the claim and response, an employment judge will initially review them. If the claim or response (or any part of them) is unlikely to succeed, the judge will delete it, or 'strike it out'. The judge will also strike out a claim or response that falls outside the tribunal's jurisdiction.

If the employment judge decides that the case should continue, the tribunal will send the parties instructions for preparing the case for a trial (case management directions).

Northern Ireland

Tribunal claims usually go straight to the Case Management Discussion once the Tribunal receives the claim and response. In certain cases, pre-hearing review may be required beforehand to clarify or review certain aspects of the case.

Preliminary hearings

Northern Ireland

Pre-hearing review

A pre-hearing review is a formal hearing where written or oral representations (usually being reasons and arguments for and against issues in the case) can be made. This includes witness statements by witnesses asked to attend the pre-hearing review.

It's usually held to decide preliminary (initial) issues that are in dispute that may affect whether the case should continue, such as if the claim has been served late and the employee is asking for an extension of time to be granted by the judge.

Either party may apply for a pre-hearing review. The tribunal may itself decide that a pre-hearing review should take place.

If the tribunal considers that either the employee's case or the employer's defence has little chance of success, it can order a deposit to be paid. If the party paying the deposit continues with their claim and loses, the deposit may not be returned and they risk being ordered to pay the costs of the other party.

Case management discussion

These are heard by the chairman of the tribunal alone and are held to identify the issues in the case and to consider procedural aspects, such as whether expert evidence is needed and the date that each party should exchange ('disclose') relevant documents. They are usually conducted by telephone conference call. No evidence is given.

The chairman can make orders on matters such as:

  • Information that's currently missing and needs to be shared
  • The length and dates of any subsequent hearing
  • The steps that need be taken by the parties to prepare for a final hearing and dates when they should be completed by (this is known as a 'Directions order' and includes swapping relevant information that each party has about the case and providing witness statements)

Either the employer or employee may be ordered to give the other information that's missing by a certain date, such as more details of issues made in a claim or defence. Failure to comply with the order could result in the striking out of the claim or the defence.

Other orders

Forcing witnesses to attend: Where a party wants a particular witness to attend a hearing, the tribunal has the power to order them to attend it if it considers their evidence relevant and that the order is necessary to secure their attendance. The witness's expenses are paid for by the party relying on their evidence, though if that party is successful they may be able to get an order for costs to recover this.

Preventing disclosure of the name of a party: In the case of sexual misconduct, the tribunal may make a 'restricted reporting order', which will prevent publication of the name of the person affected by the allegation.

Order for failing to comply with a previous order: A party failing to comply with a previous order of the tribunal, such as not complying with a directions order, can result in the claim or defence being struck-out.

England, Wales and Scotland

The parties can request a tribunal to hold a preliminary hearing to discuss all of the above-mentioned issues (except the case directions, which would have already been dealt with). This is a formal hearing that is attended by an employment judge. Written or oral representations can be made and can include witness statements.

If the tribunal considers that either the employer or employee has little reasonable prospect of success, it can order that a deposit be paid. The tribunal can make a deposit order for a specific part of a claim or response (rather than the whole of it). Should either party persist with their claim and lose, the deposit may well be lost and the paying party may risk facing an order to pay the costs (or in Scotland, expenses) of the other party.

Preparation for the final hearing

The employee and employer will be notified in writing of a date, time and place for the final hearing. All the witnesses must be available to attend it.

Both sides must try to agree on preparing a single bundle of documents for use at the hearing. This should include all correspondence and other documents which both parties intend to rely on, arranged in correct sequence and numbered consecutively.

The employer, the employee and every member of the tribunal (usually 3) should each have their own copy of the bundle, with a further copy for the witnesses.

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