Preliminary hearings

[ch 6: pages 35-36]

Rule 53 (Early Conciliation Rules of Procedure) allows a tribunal to call a preliminary hearing for any of the following reasons:

• to conduct a preliminary consideration of the claim with the parties and make a case management order;

• to determine any preliminary issue;

• to consider whether a claim or response, or any part, should be struck out;

• to make a deposit order; and

• to explore the possibility of settlement or alternative dispute resolution (including judicial mediation).

As can be seen from the list, the scope of issues that can be decided at a preliminary hearing is wide. It can include issues that will decide whether a claim can proceed. For example, in a claim for disability discrimination where the employer disputes that the claimant is disabled, the tribunal will usually hold a preliminary hearing solely to decide whether the claimant has a disability. This is because if the tribunal concludes that the claimant is not disabled, the whole claim must fail. Other examples are issues of employment status, for example, whether a claimant is an employee, or to consider whether a claim was brought in time.

Preliminary hearings about case management issues take place in private (sometimes on the phone), but preliminary hearings that could result in the whole case being decided must be heard in public.