Preliminary hearings

Sometimes tribunals hold a “preliminary hearing” before the main trial of the claim. Under the new rules, all the hearings that take place before the main trial of the claim are called preliminary hearings. The old distinction between “pre-hearing reviews” (PHRs) and “case management discussions” (CMDs) has been abolished.

Some claims need more complicated management, beyond the scope of a standard case management order. Sometimes, issues can be dealt with by writing to the tribunal, but sometimes a hearing is unavoidable. Typical issues include, for example, the question of expert medical evidence where disability is disputed by the employer.

Other preliminary hearings are used to decide particular issues in the claim. This is usually restricted to cases where the outcome of that issue will end the whole claim, saving costs and time. For example, where an employer disputes that a claimant is disabled, there is often a separate preliminary hearing to decide this issue because if the claimant is not disabled, the whole claim will fail (see Chapter 6). Other good examples are issues of employment status, for example, whether a claimant is an employee or not, or questions about time limits, for example, whether the claim was brought in time.

Preliminary hearings concerning claim management issues take place in private (sometimes even on the phone) but preliminary hearings to consider striking out any part of the claim or response, or to decide preliminary issues that could resolve the whole case must be heard in public.

An employment judge has the power to order a party to pay a deposit, not exceeding £1,000, if their case has little prospect of success but is still arguable. The tribunal must make reasonable inquiries as to a claimant’s ability to pay, and the deposit must be paid within 21 days or else the claim will be struck out. The fact that a tribunal has made a deposit order is a good indicator that a claim is likely to fail. Claimants should think very carefully before continuing a claim in these circumstances and take legal advice if possible, because of the risk of being ordered to pay the employer’s costs if the claim does fail (see page 38).

A tribunal can strike out a claim, or a response, that is “scandalous, vexatious or has no reasonable prospect of success” (rule 37). Claimants who do not “actively pursue” their claims, for example, by failing to comply with the tribunal’s directions or orders, also risk having their claims struck out.

A “strike out” is an extreme remedy, because it deprives a party (usually the claimant) of a proper hearing. It is rare to strike out a discrimination claim, because cross-examination of the employer’s witnesses in a full trial is usually needed to decide how strong the case is (Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330), and tribunals recognise a particularly strong public interest in justice being “seen to be done”.

An Unless Order is an order for one or both of the parties to do something by a certain date. Failure to comply is always very serious. It can result in being barred from bringing or defending the claim at all. Under the terms of an Unless Order, if the order is not complied with by the stated deadline, the claim can be automatically struck out, without the need for another hearing.

An employment judge can issue a default judgment if the employer has not issued a valid response form in time or does not intend to oppose the claim. This is a judgment made without a hearing.