Respondents List of Issues for Preliminary Hearing

Preparing and Serving the Respondent’s List of Issues for a Preliminary Hearing

A Preliminary Hearing (PH) is a critical stage in the Employment Tribunal (ET) process, particularly in complex cases such as discrimination or whistleblowing claims (Open Track cases). During a Case Management PH, the employment judge will seek to clarify the issues that need to be determined at the final hearing.

If the legal and factual issues are not clearly set out in the pleadings (i.e., the claim or response), the employment judge may order the parties to agree on a List of Issues. As the Respondent (employer), presenting a clear and accurate List of Issues is essential for a robust defence and efficient case management.

I. The Purpose of the List of Issues

The List of Issues defines the legal and factual questions the tribunal must decide at the final hearing.

Clarity and Structure

The List of Issues should accurately reflect the basis of the claim or response. It serves to outline what is and what is not in dispute between the parties.

Confining the Hearing

The general rule is that the issues at the final hearing will be confined to those listed. However, a tribunal is not required to stick slavishly to an agreed list where doing so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence.

Avoiding Error

It is critical to ensure that the list accurately reflects the issues raised in your pleadings (ET3). Conversely, if a key issue is omitted from the List, even if adequately pleaded in the ET1, the tribunal may fail to consider it. Similarly, the tribunal should not try to match a new issue (e.g., arising in cross-examination) to the closest fit on the established list; the proper course is for a party to apply to amend the pleadings.

II. Preparing the List of Issues

If a case management preliminary hearing is scheduled, the tribunal will ask the parties, particularly those who are legally represented, to outline a list of issues to be decided.

A. Required Content and Detail

The List of Issues should outline the legal and factual matters the tribunal will need to decide. When drafting, ensure the list:

1. Reflects Pleadings

   Accurately reflects the basis of the claim and your defence (the Grounds of Resistance).

2. Addresses Jurisdiction

   Clearly outlines any issues regarding the tribunal's jurisdiction to hear the claim (e.g., that the claim was made out of time, that the Claimant lacked employee status, or that the Respondent is not the correct party).

3. Includes Remedy

   While not strictly mandatory, it is recommended that the List of Issues include a remedy (such as compensation) explicitly.

B. The Benefit of Proactive Preparation

It is strongly encouraged that the parties prepare and agree on the List of Issues in advance of the PH and provide a copy to the Employment Judge.

• Case Management Assistance

  Providing an agreed list (alongside other helpful documents, such as a chronology and a cast list) assists the tribunal. It prevents the PH from becoming a "failure" that necessitates sending parties away to provide further particulars.

• Respondent's Strategy

  If the PH is properly conducted, both parties should leave with a greater understanding of the issues that are, and are not, in dispute, which may help narrow the case before the final hearing.

III. Service Requirements for the PH Agenda

Serving the Case Management Agenda, which includes the List of Issues, requires strict adherence to the procedural rules outlined in the ET Rules 2024.

A. Deadline for Submission

For Open Track cases (complex discrimination or whistleblowing claims), the parties are typically asked to complete a standard case management agenda and send copies to the other parties and the tribunal at least seven days before the Preliminary Hearing.

B. Requirement to Serve the Opposing Party

Where a party (the Respondent) sends a communication or document to the tribunal (including the agenda and List of Issues), they must send a copy to all other parties and state that they have done so (e.g., by using "cc" or otherwise).

• Electronic Communication

  Suppose service is done through the tribunal's digital case management system (e.g., MyHMCTS). In that case, the party is deemed to have complied with this requirement, as the system automatically provides a copy to the other parties.

• Methods of Delivery

  Documents may be delivered by post, direct delivery, or electronic communication (online, email, or through portals). If the Claimant is unrepresented, the document must be sent to the address given in the claim form or notified as the address for service.

IV. Assistance with Your Final List of Issues

We understand that preparing a comprehensive List of Issues can be challenging. By carefully structuring the List, we help you ensure that the issues are properly framed, reducing the risk of procedural irregularity or disadvantage at the final hearing.

The judge at the PH will discuss the suggested list(s) of issues with the parties, and the final Case Management Order issued after that hearing will likely set out the agreed list of issues in writing, even if it is in draft form.