Representation At Preliminary Hearing for Respondent

Representation at the Employment Tribunal Preliminary Hearing (PH)

For employers (Respondents) defending a claim in the Employment Tribunal (ET), the Preliminary Hearing (PH) is often the first critical opportunity to shape the proceedings, narrow the issues, and potentially dismiss claims early. Professional representation at this stage ensures your defence is strategically managed, maximising efficiency and compliance with the Employment Tribunal Procedure Rules 2024 (ET Rules 2024).

I. The Purpose and Scope of a Preliminary Hearing

A PH is an interim hearing where both case management and substantive preliminary issues can be determined. Depending on the complexity of the case, the PH may be used for several strategic purposes:

• Case Management

  To conduct a preliminary consideration of the claim, clarify the issues, and make case management orders relating to the conduct of the final hearing. Complex matters, such as discrimination or whistleblowing claims (Open Track cases), are typically listed for a Case Management PH.

• Determining Preliminary Issues

  To resolve any substantive issue which may determine the complaint or the tribunal's jurisdiction.

• Strike-Out or Deposit Orders

  To consider striking out a claim or response (or part of one) or making a deposit order.

• Alternative Dispute Resolution (ADR)

  To explore the possibility of settlement or judicial mediation.

The tribunal must give at least 14 days' notice of any PH that involves determining preliminary issues, and the notice must specify those issues.

II. Challenging the Claim: Preliminary Issues

As the Respondent, addressing preliminary issues early can save significant expense and time. Common jurisdictional issues suitable for determination at a PH include:

• Time Limits

  Whether the claim was brought in time, determining a time point as a matter of substance requires the tribunal to hear evidence, make factual findings, and apply the law, leading to a definitive outcome.

• Employment Status

  Whether the claimant has the necessary employment status to bring the claim.

• Qualifying Service

  Whether the claimant has the requisite qualifying period of employment to bring the claim.

• Correct Respondent

  Whether the employer is the correct respondent to the claim.

An application for a PH to determine a preliminary issue should set out the client's position clearly, often referencing the facts laid out in the Grounds of Resistance (ET3). Dealing with such issues at a PH will enable the tribunal to conduct proceedings efficiently and fairly.

III. Seeking Early Dismissal: Strike-Out and Deposit Orders

The PH provides a forum for the Respondent to formally apply for the early dismissal or restriction of weak claims.

• Strike-Out

  The tribunal has the power to strike out a claim or response (in full or in part) if it has no reasonable prospects of success or because it does not contain complaints within the tribunal's jurisdiction. If the tribunal believes the response has reasonable prospects of success, it will proceed beyond the initial sift stage.

• Deposit Orders

  The tribunal may make a deposit order that the Claimant pay a deposit (up to £1,000 per argument) as a condition of pursuing specific allegations if it is found that they have a "little reasonable prospect of success". This test is less stringent than the standard required for a strike-out.

We can assist in preparing the necessary documentation, such as an Application for a Preliminary Hearing: Strike-out and Deposit Order, to address these points.

IV. Representation and Procedural Compliance

While preliminary hearings are usually attended by the solicitors acting for the parties, counsel may be appropriate if the claim is complex, high value, or if the hearing may be converted into a final hearing.

The ET3 Foundation

A strong defence at the PH relies on a robust and timely filed ET3 response form. The response must set out the facts relied on, address every issue raised by the claimant, and contain a detailed rebuttal of the specifics of the claim with supporting information. The Grounds of Resistance (Box 6) is the Respondent's first opportunity to set out the nature of its defence.

28-Day Deadline

The response must be presented to the tribunal within 28 days of the date on which the tribunal sent a copy of the claim. Act fast.

Consequences of Delay

Failure to submit the response on time (or to apply for an extension) will result in the response being rejected, and the tribunal may proceed to enter judgment against the Respondent (default judgment).

Extension of Time

An application for an extension of time must be in writing, copied to the claimant, and set out the reason for the extension sought. If the deadline has passed, a draft of the response must be submitted with the application. An extension may be granted if it is objectively justified on the grounds of reason and justice, considering the explanation for the delay, the merits of the defence, and the balance of prejudice.

Making Applications and Services

• Application Method

  Applications for a PH, including to determine a preliminary issue, can be submitted using the MyHMCTS portal by represented Respondents, which automatically sends a copy to the other parties. Paper applications are still permitted, though online submission is encouraged.

• Service Requirement

  When applying to the tribunal, the Respondent must send a copy to all other parties and state that they have done so.

• Compliance

  If an order is made without a hearing, or at a hearing where the Respondent was not present, the Respondent may apply for the order to be varied, suspended, or set aside.

V. Strategic Case Management

The PH is used to ensure the case is dealt with fairly and justly, adhering to the overriding objective (Rule 3). We help Respondents prepare by addressing key case management points:

1. Clarifying the Issues

   The employment judge will seek to clarify the legal and factual issues. It is encouraged that parties agree on a List of Issues and a chronology in advance to assist the judge.

2. Witness Evidence

   If the PH is determining a substantive preliminary issue, the tribunal must consider evidence. Directions will usually be given for the exchange of witness statements in advance of the hearing, along with disclosure of relevant documents.

3. Vulnerable Parties

   If the Respondent or any witness has a disability, the tribunal will consider what adjustments may be required to facilitate their participation. This includes asking questions in the standard case management agenda.

4. ADR Exploration

   The judge may explore settlement possibilities through Judicial Assessment or Judicial Mediation.

We ensure that all applications, including those for time extensions, are thoroughly prepared using standard legal documents.