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Free Representation at Preliminary Hearing
Free Representation in the Employment Tribunal For Preliminary Hearing
For Claimants pursuing a case in the Employment Tribunal (ET), securing representation, particularly free representation, can be vital for navigating the increasingly formal and complex legal process. If you are a Litigant in Person (LIP)—an individual pursuing a case without professional legal counsel—understanding the procedural rules and the assistance you can expect from the tribunal is crucial to ensuring your claims are heard fairly.
I. The Challenges and Legal Context for Litigants in Person (LIPs)
The Employment Tribunal has a duty to manage cases fairly and justly, which includes, so far as practicable, ensuring that all parties are on an equal footing. However, tribunals still operate within an adversarial framework.
Key Principles You Must Know
Proactive Approach Required
Tribunals should adopt a proactive approach in case management. They should not expect LIPs to identify the correct legal causes of action themselves, particularly if the pleaded facts "shouted out" a different legal argument.
Assistance, Not Substitution
The tribunal is required to provide some assistance to redress the balance against an inexperienced LIP. This level of assistance is not subject to rigid rules and depends on the specific circumstances of the case, including your apparent level of competence and understanding. However, the proceedings remain adversarial, not inquisitorial, meaning the tribunal is not required to obtain evidence for you.
Pleadings Must Be Clear
Even as an LIP, your initial claim (ET1) must be clear. If the pleadings lack clarity or structure, or if the claim is confused, this can complicate the process for the employer (Respondent) and may require the tribunal to order further and better particulars. You should be ready to confirm which paragraphs of your claim are "background," which set out specific allegations (e.g., discrimination), and which identify breaches of contract (e.g., in a constructive dismissal claim).
Caution Regarding Strike-Outs and Time Limits
Your case can be challenged at an early stage, such as a Preliminary Hearing, if parts of it are deemed weak:
Deposit Orders
Suppose specific allegations in your claim are found to have "little reasonable prospect of success". In that case, the tribunal may order you to pay a deposit of up to £1,000 per argument as a condition of continuing to pursue them. The tribunal must inquire into your ability to pay this deposit.
Strike-Out
The tribunal has the power to strike out your claim if it has no reasonable prospects of success. This is generally reserved for the "plainest and most obvious cases". If a strike-out fails, the argument can still be raised by the Respondent at the final hearing.
Time Points
A Preliminary Hearing may be used to determine if your claim is out of time (a preliminary issue) or whether it should be struck out because it has no reasonable prospects of being found to be in time. This distinction is critical, as the legal test is significantly different. Determining a substantive time issue requires the tribunal to hear evidence, make findings of fact, and apply the law, which means that evidence must be prepared and presented. Caution must be exercised because time points in discrimination cases are acute and fact-sensitive.
II. Preliminary Hearings: A Critical Stage for Claimants
Preliminary Hearings (PHs) are typically used for case management (setting directions for the final hearing) or determining preliminary issues (such as jurisdiction or strike-out applications). As a Claimant, this is where your case structure and viability are often decided.
What Happens at a Preliminary Hearing (PH)
The tribunal is required to give you at least 14 days' notice of any PH where preliminary issues (such as jurisdiction or strike-out) are to be decided, and the notice must specify those issues.
The PH agenda typically covers:
Clarifying the Issues
The judge will clarify the legal and factual issues that need to be determined at the final hearing. If the issues are not clear in your claim, the judge may order you to produce further particulars or agree a list of issues with the Respondent.
Jurisdictional Issues
Determining whether the tribunal has jurisdiction to hear the claim (e.g., whether the claim was presented out of time).
Case Management
Orders related to disclosure, exchange of witness statements, and preparation of documents, such as a schedule of loss and a chronology.
Alternative Dispute Resolution (ADR): Exploring settlement or alternative options like judicial assessment or judicial mediation.
Witness Evidence at Preliminary Hearings
Suppose the PH is going to determine a substantive preliminary issue (e.g., the correct identity of the employer or whether a claim is in time). In that case, the tribunal must consider evidence and make findings of fact.
If you are an LIP, who will be your own witness, the judge directing the PH would be expected to make a direction for the exchange of witness statements and may give you guidance as to the need for your witness statement to cover all factual issues.
Failure to provide necessary evidence can lead to an adverse ruling. For instance, in Smirnov v Ramboll UK Ltd [2025] EAT 12, the appeal was upheld because the substantive issue of the employer’s identity was determined solely on documents and submissions, without the use of witness evidence.
III. How We Can Help the Claimant in the Preliminary Hearing
We offer targeted assistance to Claimants (or prospective Claimants) acting as Litigants in Person to prepare for the critical Preliminary Hearing stage.
Drafting Clear Pleadings
We can help you frame your claim to ensure it clearly sets out the allegations, the specific breaches of the Equality Act 2010 (EqA 2010) or other relevant legislation, and the factual basis for your claims. This reduces the risk of the Respondent succeeding with an early strike-out application on the basis of "no reasonable prospects of success".
Preparing for Time Points and Strike-Outs
We assist in preparing arguments to defend against applications that your claim is out of time or has no reasonable prospect of success. We ensure you understand the necessary evidence required if the tribunal decides to determine the time point as a matter of substance.
Applying for Extensions of Time
If you missed the three-month deadline for submitting your claim, we can help prepare an application for an extension of time, arguing that it is just and equitable to allow the claim to proceed.
Case Management Preparation
We provide guidance on preparing for the PH, including how to agree a List of Issues and a chronology with the Respondent, and how to identify the witnesses whose evidence is relevant to the preliminary issues in the case.
By ensuring procedural compliance and clarity of argumentation, we aim to put you on a more equal footing with a represented Respondent at the Preliminary Hearing.
Free Representation in the Employment Tribunal For Preliminary Hearing
For Claimants pursuing a case in the Employment Tribunal (ET), securing representation, particularly free representation, can be vital for navigating the increasingly formal and complex legal process. If you are a Litigant in Person (LIP)—an individual pursuing a case without professional legal counsel—understanding the procedural rules and the assistance you can expect from the tribunal is crucial to ensuring your claims are heard fairly.
I. The Challenges and Legal Context for Litigants in Person (LIPs)
The Employment Tribunal has a duty to manage cases fairly and justly, which includes, so far as practicable, ensuring that all parties are on an equal footing. However, tribunals still operate within an adversarial framework.
Key Principles You Must Know
Proactive Approach Required
Tribunals should adopt a proactive approach in case management. They should not expect LIPs to identify the correct legal causes of action themselves, particularly if the pleaded facts "shouted out" a different legal argument.
Assistance, Not Substitution
The tribunal is required to provide some assistance to redress the balance against an inexperienced LIP. This level of assistance is not subject to rigid rules and depends on the specific circumstances of the case, including your apparent level of competence and understanding. However, the proceedings remain adversarial, not inquisitorial, meaning the tribunal is not required to obtain evidence for you.
Pleadings Must Be Clear
Even as an LIP, your initial claim (ET1) must be clear. If the pleadings lack clarity or structure, or if the claim is confused, this can complicate the process for the employer (Respondent) and may require the tribunal to order further and better particulars. You should be ready to confirm which paragraphs of your claim are "background," which set out specific allegations (e.g., discrimination), and which identify breaches of contract (e.g., in a constructive dismissal claim).
Caution Regarding Strike-Outs and Time Limits
Your case can be challenged at an early stage, such as a Preliminary Hearing, if parts of it are deemed weak:
Deposit Orders
Suppose specific allegations in your claim are found to have "little reasonable prospect of success". In that case, the tribunal may order you to pay a deposit of up to £1,000 per argument as a condition of continuing to pursue them. The tribunal must inquire into your ability to pay this deposit.
Strike-Out
The tribunal has the power to strike out your claim if it has no reasonable prospects of success. This is generally reserved for the "plainest and most obvious cases". If a strike-out fails, the argument can still be raised by the Respondent at the final hearing.
Time Points
A Preliminary Hearing may be used to determine if your claim is out of time (a preliminary issue) or whether it should be struck out because it has no reasonable prospects of being found to be in time. This distinction is critical, as the legal test is significantly different. Determining a substantive time issue requires the tribunal to hear evidence, make findings of fact, and apply the law, which means that evidence must be prepared and presented. Caution must be exercised because time points in discrimination cases are acute and fact-sensitive.
II. Preliminary Hearings: A Critical Stage for Claimants
Preliminary Hearings (PHs) are typically used for case management (setting directions for the final hearing) or determining preliminary issues (such as jurisdiction or strike-out applications). As a Claimant, this is where your case structure and viability are often decided.
What Happens at a Preliminary Hearing (PH)
The tribunal is required to give you at least 14 days' notice of any PH where preliminary issues (such as jurisdiction or strike-out) are to be decided, and the notice must specify those issues.
The PH agenda typically covers:
Clarifying the Issues
The judge will clarify the legal and factual issues that need to be determined at the final hearing. If the issues are not clear in your claim, the judge may order you to produce further particulars or agree a list of issues with the Respondent.
Jurisdictional Issues
Determining whether the tribunal has jurisdiction to hear the claim (e.g., whether the claim was presented out of time).
Case Management
Orders related to disclosure, exchange of witness statements, and preparation of documents, such as a schedule of loss and a chronology.
Alternative Dispute Resolution (ADR): Exploring settlement or alternative options like judicial assessment or judicial mediation.
Witness Evidence at Preliminary Hearings
Suppose the PH is going to determine a substantive preliminary issue (e.g., the correct identity of the employer or whether a claim is in time). In that case, the tribunal must consider evidence and make findings of fact.
If you are an LIP, who will be your own witness, the judge directing the PH would be expected to make a direction for the exchange of witness statements and may give you guidance as to the need for your witness statement to cover all factual issues.
Failure to provide necessary evidence can lead to an adverse ruling. For instance, in Smirnov v Ramboll UK Ltd [2025] EAT 12, the appeal was upheld because the substantive issue of the employer’s identity was determined solely on documents and submissions, without the use of witness evidence.
III. How We Can Help the Claimant in the Preliminary Hearing
We offer targeted assistance to Claimants (or prospective Claimants) acting as Litigants in Person to prepare for the critical Preliminary Hearing stage.
Drafting Clear Pleadings
We can help you frame your claim to ensure it clearly sets out the allegations, the specific breaches of the Equality Act 2010 (EqA 2010) or other relevant legislation, and the factual basis for your claims. This reduces the risk of the Respondent succeeding with an early strike-out application on the basis of "no reasonable prospects of success".
Preparing for Time Points and Strike-Outs
We assist in preparing arguments to defend against applications that your claim is out of time or has no reasonable prospect of success. We ensure you understand the necessary evidence required if the tribunal decides to determine the time point as a matter of substance.
Applying for Extensions of Time
If you missed the three-month deadline for submitting your claim, we can help prepare an application for an extension of time, arguing that it is just and equitable to allow the claim to proceed.
Case Management Preparation
We provide guidance on preparing for the PH, including how to agree a List of Issues and a chronology with the Respondent, and how to identify the witnesses whose evidence is relevant to the preliminary issues in the case.
By ensuring procedural compliance and clarity of argumentation, we aim to put you on a more equal footing with a represented Respondent at the Preliminary Hearing.