10. TRIBUNAL POWERS

There are often issues that need to be dealt with before the full hearing of a claim. The procedures for hearing these issues are explained below.

Pre-hearings and deposits

Before the claim reaches a full hearing, an employment judge may hold a case management discussion (CMD) to deal with matters relating to the procedure and management of the proceedings, such as clarification of the issues in dispute and the provision of additional information or documents that are relevant to the claim. A tribunal can also call for a pre-hearing review (PHR), which deals with more fundamental issues, such as whether the tribunal has jurisdiction to hear the claim (including whether the claim has been submitted in time) or whether an amendment to the form should be allowed.

In his 2012 review of tribunal procedures, Lord Justice Underhill recommends that case management discussions and pre-hearing reviews be merged or replaced by “preliminary hearings”.

Under draft rules 39–52, judges would use preliminary hearings for matters such as preliminary consideration of the claim, to make case management directions, 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.

The subject of the meetings would normally be stated in advance. While these meetings could be held in private, where a preliminary issue or strike out is being considered, they would have to be in public. Additionally, it is intended that legal officers rather than judges would handle case management functions. Parties would have the right to ask (within 14 days of receiving the legal officers’ decision) for a judge to consider afresh the decisions made.

At a PHR, an employment judge also has the power to order a party to pay a deposit if the judge believes that the case has little prospect of success but is still arguable. The deposit can be for a sum of up to £1,000 (£500 prior to 6 April 2012). If a tribunal indicates that you should pay a deposit, you should think very carefully before continuing with your claim, as in practice, it is a good sign that you are unlikely to win and also that you may be ordered to pay some, or even all, of the employer’s costs.

In fact, it is generally acknowledged that deposit orders are rarely made and employment tribunals would need to become much more proactive to make sure that they are actually used. However, once employment tribunal fees are introduced, tribunals may be even more reluctant to use deposit orders as claimants are already paying to bring a case.

Lord Justice Underhill also recommended that the rules on when deposits can be ordered to be paid by an individual be made more flexible. Specifically, it is intended that judges be able to order a deposit to be paid in relation to just one or more elements of a claim (rather than the entire claim).

A tribunal can strike out a claim, or an employer’s response, that is “scandalous, vexatious or has no reasonable prospect of success” or which has been conducted in a “scandalous, unreasonable or vexatious manner”. Claimants who fail to actively pursue their claims — for example, by failing to comply with directions or orders given by the tribunal — are also at risk of having their claims struck out.

A “strike out” is an extreme remedy, as it results in a party (usually the claimant) being deprived of a proper hearing, so in practice, it is quite rare. It is especially rare in discrimination cases, where cross-examination of the employer’s witnesses is usually needed to decide how strong the case is (Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330). The government is keen to expand the range of circumstances in which cases can be struck out, even, in some cases, without hearing from either side.

An employment judge can issue a default judgment if the respondent 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. Lord Justice Underhill has recommended that the regime governing the setting aside of default judgments be simplified and made more flexible: draft rules 17–21 and 37-38.

The changes to the rules on setting aside default judgments are intended to give judges more flexibility. And with the changes to the rules on the withdrawal of claims, the intention is that following a withdrawal by an employee, the employer will no longer need to take a further step (i.e. apply for the case to be dismissed).

Alternatively, a tribunal may make an “unless order” — a requirement for one or both of the parties to do something (normally provide a document) by a certain date. Failure to comply with an unless order will almost always have serious implications — although there are occasional exceptions. The factors a tribunal is unlikely to take into account include the reason for the default, and in particular whether it is deliberate; the seriousness of the default; the prejudice to the other party; and whether a fair trial remains possible (Thind v Salvesen Logistics Ltd UKEAT/0487/09).

If either party wants documents from the other side that are necessary to support their claim but has been refused access to them, it can ask the tribunal for an order to provide the documents. This is known as discovery or disclosure. “Privileged” documents, which are primarily communications between legal representatives or between lawyers and their clients, do not have to be disclosed.

However, if a party has waived their right to privilege (meaning they have shown that they are prepared for the information to be made public), the documents can be referred to in the case (Brunel University v Webster & Vaseghi [2007] EWCA Civ 482). Please note that disclosing part of a document will normally result in waiver of the whole of the document — this is because parties are not allowed to cherry pick what they choose to show.

Legal professional privilege does not extend to communications to and from a firm of employment consultants (New Victoria Hospital v Ryan [1993] IRLR 202, Walter Lilly & Co Limited v Mackay [2012] EWHC 649).