Pre-hearings and deposits

Before a claim reaches a full hearing, an Employment Judge may hold a case management discussion 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.

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. If a tribunal indicates that you should pay a deposit, you should think very carefully before continuing with your claim. In practice, it is a good sign that you are unlikely to win and also that you may be ordered to pay some of the employer’s costs (see page 29). Under new tribunal rules from summer 2013, the distinction between pre-hearing reviews and case management hearings is to be abolished.

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 the past, it has been relatively rare. It is especially unusual 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). It is important to make sure all the relevant documents and witnesses are before the tribunal at any preliminary hearing where strike out might be ordered, to be able to present your best case. (For a recent example, see Eastman v Tesco Stores Limited UKEAT/0143/12/SM).

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

Alternatively a tribunal may make an Unless Order. This is an order for one or both of the parties to do something (normally provide a document) by a certain date. Failure to comply with this kind of order always has serious implications, including being barred from bringing the claim at all.

If either party has been refused documents from the other side that are needed to support their claim, it can ask the tribunal for an order to provide the documents. This is known as discovery or disclosure. Privileged documents, which are mainly communications between legal representatives or between lawyers and their clients, do not have to be disclosed. 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). 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. Unrepresented litigants are at particular risk of making this mistake.

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).