Employment Tribunal Preliminary Hearing: What Employers Should Expect

An employment tribunal preliminary hearing can shape how a claim progresses, what issues the tribunal will decide and what each party must do before the final hearing.

Some preliminary hearings concentrate on case management. Others determine an important legal issue that could narrow or even end part of the claim.

Employers should therefore prepare carefully. Missing information, unclear arguments or failure to follow tribunal orders can place the business at a serious disadvantage later in the proceedings.

What is an employment tribunal preliminary hearing?

An employment tribunal preliminary hearing takes place before the final hearing of a claim. An employment judge will normally conduct it, although the exact format and purpose can vary.

The tribunal may arrange the hearing to clarify the issues, set a timetable and decide how the parties should prepare the case. Alternatively, it may need to determine a specific preliminary issue.

The hearing may take place in person, by video or by telephone. The tribunal will usually send written notice explaining the arrangements and the matters it intends to address.

Employers should read that notice alongside any previous tribunal correspondence. It may require the parties to provide information or documents before the hearing.

What can an employment tribunal preliminary hearing cover?

A case management hearing helps the judge understand the claim and organise the steps leading to the final hearing.

The judge may consider:

• the legal and factual issues in dispute;
• whether either party needs to clarify its case;
• the documents and witness evidence likely to be required;
• the timetable for disclosure and exchanging statements;
• the likely length and format of the final hearing;
• whether expert evidence or adjustments are necessary; and
• whether another preliminary hearing will be required.

The tribunal may then issue case management orders containing deadlines for the parties to follow.

Employers should treat these deadlines seriously. A failure to comply may lead to applications from the claimant, restrictions on the evidence the employer can use or, in serious cases, sanctions against the response.

Preliminary issues that may affect the claim

An employment tribunal preliminary hearing may also decide an issue that affects whether the whole claim, or part of it, can continue.

For example, the tribunal may need to decide whether the claimant presented the claim within the relevant time limit. It may also consider employment status, disability, territorial jurisdiction or whether the claimant had sufficient service for a particular complaint.

In other cases, a party may apply for a claim or response to be struck out. The tribunal might also consider whether to make a deposit order where an allegation or argument appears to have little reasonable prospect of success.

A preliminary hearing that decides a legal issue can involve witness evidence, documents and detailed submissions. Employers should not treat it as a routine administrative appointment.

Preparing the employer’s position

Before the hearing, the employer should review the ET1 claim form, its ET3 response and all correspondence from the tribunal.

The employer should identify which allegations it accepts, which it disputes and what evidence supports its position. It should also note any point that remains unclear.

An incomplete or inaccurate ET3 can cause problems throughout the proceedings. Our article on the ET3 response deadline explains the importance of submitting the response correctly and on time.

The employer should also prepare a clear chronology covering the key events. This can help the judge understand the dispute and may expose gaps or inconsistencies that need attention.

The agenda for case management

The tribunal may ask the parties to complete or discuss a case management agenda. This document helps identify the claims, issues and practical arrangements needed for the case.

Employers should prepare realistic answers rather than leaving every question for the hearing. Matters to consider include:

• the exact complaints being pursued;
• the questions the tribunal must decide;
• the number of witnesses each party expects to call;
• the volume and location of relevant documents;
• how long the final hearing may require; and
• any applications either party intends to make.

The employer should also consider whether the claimant seeks compensation, reinstatement or another remedy. Where compensation is disputed, the tribunal may direct the claimant to provide a schedule of loss and the employer to respond to it.

Documents and evidence

Even where the preliminary hearing focuses on case management, employers should begin preserving relevant evidence immediately.

This may include employment contracts, policies, emails, meeting notes, investigation records, payroll information and correspondence with the employee.

Documents should not be deleted simply because they appear unhelpful. The disclosure process normally requires the parties to provide relevant documents that support or weaken their own case.

Our article on employment tribunal evidence for employers explains how documents and witness evidence can affect the defence of a claim.

What happens during the hearing?

The judge will usually introduce the hearing and confirm its purpose. The parties or their representatives will then explain their positions and answer questions.

During a case management hearing, the judge may work through the allegations and identify the issues that require a decision. The judge may also encourage the parties to agree practical arrangements where possible.

Where the tribunal will determine a preliminary issue, the process may resemble a shorter final hearing. The parties might present evidence, question witnesses and make legal submissions.

Employers should answer the judge directly and avoid unnecessary argument with the claimant. They should also keep an accurate note of any decision or deadline announced during the hearing.

Orders made after an employment tribunal preliminary hearing

Following an employment tribunal preliminary hearing, the tribunal will normally issue written orders or a record of the hearing.

These may set dates for disclosure, preparation of the hearing bundle and exchange of witness statements. They may also require a party to provide further information about its case.

The employer should create a clear timetable as soon as it receives the orders. Responsibility for each task should be assigned to a named person, with enough time allowed for legal review.

If the employer cannot meet a deadline, it should apply to the tribunal promptly and explain why an extension is necessary. It should not simply allow the deadline to pass.

Should employers consider settlement?

A preliminary hearing can help both parties assess the strengths, weaknesses and likely costs of the case.

Employers may decide that continuing to defend the claim remains appropriate. However, they should also consider whether a commercial settlement would limit management time, legal expense and uncertainty.

Settlement discussions do not necessarily suggest that the employer accepts liability. They can form part of a practical assessment of litigation risk.

Common mistakes before a preliminary hearing

Employers can weaken their position by:

• failing to read the hearing notice carefully;
• arriving without a clear chronology or list of issues;
• assuming the hearing will only deal with administration;
• making arguments that conflict with the ET3 response;
• overlooking important documents or witnesses;
• agreeing to unrealistic deadlines; or
• failing to comply with orders made afterwards.

Early preparation allows the employer to identify these problems while there is still time to address them.

Help with an employment tribunal preliminary hearing

An employment tribunal preliminary hearing can influence the scope, timetable and direction of the entire case. Employers should understand the issues, preserve relevant evidence and prepare clear answers before attending.

EBS Law assists employers with tribunal responses, preliminary hearings, case preparation and representation at final hearings. More information is available on our employment tribunal representation for employers page.