Preliminary hearings 


Sometimes, tribunals hold a preliminary hearing before the main trial of the claim. This can happen, for example, where a claim needs complicated management and direction from the tribunal, beyond the standard directions listed above. Lots of issues can be dealt with by writing to the tribunal, but sometimes a hearing is unavoidable. 


Sometimes, preliminary hearings are used to decide particular issues in the claim. This usually happens in cases where resolving one issue will decide the whole claim, avoiding the need for a lengthy trial. For example, in a claim for disability discrimination where the employer disputes that the claimant is disabled, costs can often be saved by holding a preliminary hearing in advance to decide whether the claimant has a disability. This is because if the tribunal concludes that the claimant is not disabled, the whole claim will inevitably fail (see Chapter 7). Other good examples are issues of employment status, for example, whether a claimant is an employee, or whether a claim was brought in time. 


Preliminary hearings about case management take place in private (sometimes on the phone). However, preliminary hearings that could result in a whole case being decided once and for all must be heard in public. 


In a very weak case, a judge can order a party to pay a deposit, not exceeding £1,000. A tribunal considering making a deposit order must take into account a claimant’s ability to pay. The deposit must be paid within 21 days or the claim will be struck out (dismissed). 


A deposit order is a good indicator that a claim is likely to fail and a claimant in this position should take urgent legal advice before carrying on. A claimant who pursues a claim unreasonably after being warned by the tribunal that their case will probably fail risks being ordered to pay the employer’s costs.


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, can also have those claims struck out. 


Striking out a claim is an extreme step because it involves dismissing the claim without hearing witnesses in a proper trial. Discrimination claims are rarely struck out. This is because testing witnesses through cross-examination is usually the only effective way of testing the strength of a discrimination claim, and also because tribunals recognise a particularly strong public interest in justice being seen to be done in this type of claim (Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330). The same is true of whistleblowing cases (Morgan v Royal Mencap Society [2016] UKEAT/0272/15/LA).