Case Management/Preliminary Hearing

Case Management Preliminary Hearing

The main hearing (the Hearing) of a case is a hearing during which an employment tribunal
decides all of the liability and remedies issues in that case.

NOTE:

In this document, the main hearing is sometimes referred to as “ the Final Hearing”,
and is sometimes referred to simply as “ the Hearing”.

Prior to the Final Hearing, of any particular case, one or more preliminary hearings (in respect of that case) may have been held.
There are various types of preliminary hearing. However, in this document, we are
concerned only with one of those types of hearing: the case management preliminary
hearing.

NOTE:

A case management preliminary hearing is often referred to as “a CMPH”, and that is the terminology which we use in the rest of this document.

A CMPH will usually be held in any case which consists of, or includes one of the following types of claim:

  • An unfair dismissal claim
  • A discrimination claim
  • A “protected disclosure” detriment claim

If, in any particular case, a CMPH takes place, that CMPH will be held long before the Final Hearing of that case.

The main purpose of any CMPH is to decide any case management matters which are best determined well in advance of the Final Hearing.

A CMPH will be conducted by an employment judge.

You will be entitled to participate in that CMPH. So will the Respondent .

Purpose and Limits of This Document

The purpose of this document is to provide guidance to help you to be effective, in your role as a participant in a CMPH.

It should not be assumed that this document contains a complete, and entirely accurate, or entirely up-to-date statement of all of the relevant legal principles and procedures.

The following information does not constitute legal advice; this document provides general
guidance only.

If there is any difference between the guidance in this document and the instructions of any
employment judge or tribunal, those instructions (rather than the guidance in this document) should of course be followed.

What is decided during a CMPH?

During the course of a CMPH, and after considering any points:

  • Made by yourself
  • By or on behalf of the Respondent

  1. What are the main factual issues in the case?
  2. What are the main legal issues in the case?
  3. Should you provide ( to the Respondent ) ‘discovery’ of any documents?
  4. If so, which documents?
  5. And, if so, when?
  6. Should the Respondent provide (to you) ‘discovery’ of any documents?
  7. If so, which documents?
  8. And, if so, when?
  9. Should you provide any additional information to the Respondent?
  10. If so, what information?
  11. And, if so,when?
  12. Should the Respondent provide any additional information to you?
  13. If so, what information?
  14. And, if so,when?
  15. Should you provide, to the Respondent , written witness statements ( referred to below as “Witness Statements”), made by witnesses who will be giving evidence on your side of the case?
  16. And, if so, when should you provide those Witness Statements?
  17. Should the Respondent provide, to you, Witness Statements, made by witnesses
    giving evidence on the Respondent’s side of the case?
  18. And, if so, when?
  19. What word limit should be imposed in respect of each Witness Statement?
  20. What arrangements should be made for the preparation of a bundle of documents
    (the ‘Bundle’) for the Hearing’?
  21. When must the Bundle be ready?
  22. What page limit should be imposed in respect of the Bundle?
  23. On what date, or dates, should the Hearing take place?

What are the main factual issues in the case?

You and your Respondent’s legal representative will be ordered, by the employment judge, to prepare a list of the main factual issues in the case.

NOTE:

A list of factual issues is a list of factual questions that will help the tribunal decide your case

In your claim form, you will have set out your version of what you consider to be main relevant facts. In the reposnse form, the respondent/s will have set out their version of what they consider to be the relevant facts.

Identifying the factual issues in the case will involve defining and summarising the main relevant factual matters about which you and the Respondent disagree. Each such area of disagreement (between you and the Respondent) is a ‘factual issue’.

NOTE:

You should read your employment tribunal claim
form and the Respondent’s employment tribunal
response form, for the purpose of identifying any
important differences between those two versions
of the facts. If you identify those differences, that will
help you to list the main factual issues in the case.

If the Respondent is legally represented, their representative will probably draft a list of the factual issues on behalf of the Respondent. That legal representative will provide you with a copy of that list of factual issues in advance of the CMPH.

You may wish to adopt that legal representative’s list of factual issues as your own list of factual issues.

However, before doing so, you should consider the following:
  1. Does that legal representative’s list of factual issues include all the main differences between:
    • Your own version of the relevant facts
    • The Respondent’s version of the relevant facts

  2. Does that legal representative’s list of factual issues include any factual disagreements which had not been specified in the Respondent’s response form?

The purpose of taking into account points 1 and 2 above are as follows:

  • You want to avoid appearing to agree with the Respondent in relation to some
    factual issue/s on which you and the Respondent are, in reality, in disagreement.

  • Usually (although not always), it will not be useful to you to help the Respondent to
    broaden the scope of the factual disputes in the cases.

During the CMPH, the Respondent’s list of factual issues will be considered. If, at the end of that discussion, there is any disagreement between youself and the Respondent in relation to that list, it is likely that the judge will make relevant changes to the list.

What are the main legal issues in the case?

You and your Respondent’s legal representative will be ordered, by the employment judge, to prepare a list of legal issues.

NOTE:

A list of legal issues is a list of legal questions that will help the tribunal to decide
the case.

Identifying the legal issues in the case will consist of:

  • Defining, and
  • Summarising

the main disagreements (between yourself and the Respondent) in respect of the relevant legal principles. Each such area of disagreement is a ‘legal issue’.

In your claim form, you will have (or you should have) specified, or referred to, your own version ofthe relevant legal principles.

In the response form, the Respondent will have set out their own version of the relevant legal
principles.

If the Respondent is legally represented, that representative will probably draft a list of the legalissues on behalf of the Respondent. In advance of the CMPH, that legal representative will provide you with a copy of that list of legal issues.

You may wish to adopt that representative’s list of legal issues as your own list of legal issues.

However, before doing so, you should consider the following:

    1. Does the legal representative’s list of legal issues include all of the main differences between:
      • Your version of the relevant legal principles
      • The Respondent’s version of the relevant legal principles

  2. Does the Respondent’s list of legal issues include any legal issue/s which had not
    been raised in the Respondent’s response?

The purposes of considering points 1 and 2 above are as follows:

  • You will want to avoid appearing to agree with the Respondent in relation to some legal issue on which you and the Respondent are, in reality, in disagreement.
  • It will usually not be in your own best interests to help the Respondent to broaden the scope of legal disputes.

TIP:

You should read your claim form and you should read your Respondent’s response form, to identify any important differences between your version of the relevant legal principles and your Respondent’s version of the relevant legal principles. If you identify those differences, that will help you to list the main legal
issues in the case.

The Respondent’s list of legal issues will be discussed during the CMPH. If there is
disagreement between the parties, about any item/s on that list, it is likely that, during the CMPH, the employment judge will make suggestions for changes to that list.

"Discovery" of any documents?

Discovery is the process by which one party (to the litigation):

  • reveals, to the other party, and /or
  • provides to the other party,

some documents which are relevant to the case.

Technically speaking, the discovery process is a three-phase process, which is as follows:

In relation to any particular document, a party provides discovery (of that document), to the other party only when the “discoverer” has done all of the following:

Informs the other party of the existence of each of the documents which are to be the subject of “discovery” to that other party.

1.

Lets the other party see all of those documents.

2.

Provides the other party with a copy of each of those documents.

3.

However, in many situations, the party who is providing the discovery can probably usefully
streamline that process by just doing the following:

Provide the other party with copies of all of the documents which fall within the scope of the relevant discovery order.

1:

Confirm to the other party, that all of the documents which fall within the scope of the relevant discovery order are among those copied documents.

2:

NOTE:

For the purposes of the discovery process, a ‘document’ refers to any written, printed, or electronic material that conveys information, of any description, that has been recorded.

The following written, printed, or electronic materials are considered to be ‘documents’:

  • Letters
  • Emails
  • Text Messages
  • Medical reports
  • Invoices
  • Photographs

In a dismissal case

In a dismissal case, the following types of document may be within the scope of a
requirement to provide discovery:
1. Records of your employment history such as:
          (1) Letter of    appointment
          (2) Statement of particulars
          (3) Contract of employment.
2. Notes that record a particular meeting, such as:
          (1) Disciplinary hearing
          (2) Grievance hearing
3. Letter of resignation
4. Letter of dismissal
5. Documents that relate to your post-dismissal efforts to obtain alternative         employment.

Discovery of "your" documents?

In most cases, you will be required to provide discovery, to the Respondent , of all of the documents which you will be drawing to the attention of the main tribunal (the tribunal which conducts the Final Hearing). There is unlikely to be any respectable argument against the making of such an order.

If any particular document is within the scope of an order for discovery which has been made against you, the discovery process – in relation to that particular document – will be as follows:

If that document is in the possession of the Respondent , or is under the control of the
Respondent , you only need to inform the Respondent that the document is one of the
documents upon which you intend to rely.

1.

If that document is in your possession, or under your control, and is not in the possession of, or under the control of, the Respondent , you will be required to do all of the following:

2.

Inform the Respondent
of the existence of that document.

Let the Respondent
see that document.

Provide the Respondent
with a copy of that
document.

If the Respondent asks for an order which would require you to provide discovery of some document, that is not one of the documents upon which you intend to rely, you will have to decide whether to:

  1. Agree to the making of that order for discovery or
  2. Object to the making of that order.
When deciding whether to agree or object, you should take account of the following matters:
  1. If the document is ‘privileged’, you should object to the making of that order. (See below.
  2. If the contents of that document is personally sensitive for you, or is embarrassing for you, you may want to object to the making of that order.
  3. If the document does not fall within category 1or 2 above, and if the disclosure of that document can be done without any major inconvenience to yourself, you should probably agree to the making of the order.

        Discovery of the Respondent’s documents

        The employment judge will probably make an order requiring the Respondent to provide you with discovery of all of the documents upon which the Respondent intends to rely. There is unlikely to be any respectable argument against the making of such an order.

        If you want to seek an order for the discovery of some “Other” document/s (some
        document, or documents, which the Respondent does not intend to rely on), you should
        take account of the following:

        In respect of any particular document, an order for discovery of will not be made against the Respondent in any of the following situations:

        1. The document is not in the possession of, or under the control of, the Respondent
        2. The document does not contain any matters that are relevant to the issues in the case.
        3. The document is “privileged”. (See below.)

        1.

        If you want to seek an order for the discovery of some “Other” document/s (some
        document, or documents, which the Respondent does not intend to rely on), you should
        take account of the following:

        The judge is more likely to make an order if the provision of discovery of that particular document will not cause any major inconvenience or expense for the Respondent.

        The judge is less likely to make an order if the provision of discovery of that particular
        document will cause any major inconvenience or expense for the Respondent

        1.

        2.

        Privileged Documents

        The main types of privileged documents are as follows:

        Notes created in connection with the preparation of a party’s tribunal case, such as:

        • Notes of discussions, about the case, which that party (or that party’s representative) had with witnesses
        • Notes recording conversations between that party and the party’s solicitor/ lawyer

        Documents (including correspondence) which do not relate to the preparation of the tribunal case, but which were created during the course of communication between:

        • That party (or that party’s representative)
        • That party’s solicitor/ lawyer.

        Documents which relate to the negotiation of the potential settlement of this case.

        Witness Statements

        Most witnesses, either on behalf of a claimant, or on behalf of a respondent, give evidence because they are willing to do so: They are “willing witnesses”

        During the CMPH, the judge will decide:

        1. Whether each party should provide a Witness Statement (to the other party) in respect of
          each, or any, of that party’s willing witnesses
        2. The date, or dates, upon which each party is to provide any such Witness Statement(s).

        NOTE:

        In this document, any reference to “a Witness Statement” is a reference to a
        written statement by a witness.

        NOTE:

        The date, or the first date, for the provision of Witness Statements, will usually be at least a month after the CMPH.

        In each of the following types of cases, the judge, at the CMPH, will probably make an order for the provision of Witness Statements, by each party, in respect of all of that party’s willing witnesses:

        • Cases which consist of, or include, an unfair dismissal claim
        • Cases which consist of, or include a discrimination claim
        • Cases which consist of, or include, a protected disclosure detriment claim

        Accordingly, the position is as follows:

        In an unfair dismissal case, the Respondent and yourself will usually be providing Witness Statements, to each other, on the same day.

        1.

        In discrimination cases and public interest disclosure discrimination cases, the usual
        process, in repect of the exchange of Witness Statements, will be as follows:

        2.

        You will be required to
        provide (to the Respondent) your Witness Statements on some particular date.

        The Respondent will be required to provide (to you)
        their Witness Statements on some later specified date.
        (That later specified date will probably be a month after the date on which you were required to provide your Witness Statements.)

        The "Bundle"

        At a CMPH, a judge will usually require the parties to prepare a single set of documents (“a Bundle”), which will include all of the documents which one, or both, of the parties will
        want to draw to the attention of the main tribunal (the tribunal which conducts the Final Hearing).

        You should not include original documents in the ‘Bundle’. Instead, the Bundle
        should only contain photocopies of documents.

        NOTE:

        1. All of the documents which you will want to bring to the main tribunals attention
        2. All of the documents which your Respondent wants to bring to the attention of
          that tribunal.

        The documents referred to at points 1 and 2 above should all be documents that are relevant to:
        – The factual issues in the case, and/or
        – The legal issues in the case.

        • The documents should be photocopied on white A4 paper
        • They should be printed/photocopied on one side of the page only
        • Each document in the Bundle should be numbered

        If the overall page limit of all of those documents (all of the documents mentioned in 1 and 2 above) exceeds the page limit which has been imposed in respect of the Bundle, compromises will have to be made. In that situation:

        • You will probably have to agree to the exclusion of some of ‘your’ documents which are relatively less important
        • Your Respondent should make similar compromises in relation to ‘their’ documents.

        An index should be included at the front of the Bundle. That index will be a list of
        the documents that are included in the Bundle, and it should specify the page number
        at which each such document is to be found.

        The rationale for including an index at the front of the Bundle is to allow each of the
        parties, and the tribunal, to do all of the following:

        1. To locate any particular document which a party wishes to bring to the attention of
          the main tribunal
        2. To turn to the page on which that document is located
        3. To speedily find it on that page.

        Six copies of the Bundle will have to be prepared:
        – One for yourself.
        – One for the Respondent .
        – Four for the Office of the Industrial Tribunals.

        The Office of the Industrial Tribunals will allocate those four copies in the following manner:
        – Three of those copies will be made available for the tribunal members.
        – The fourth copy will be available for the witnesses.

        Technically speaking, the Respondent and yourself are jointly, and equally, responsible for producing the Bundle. However, in reality, if the Respondent is legally represented, that legal representative is likely to agree to take sole responsibility for the task of copying and indexing the Bundle, and for distributing it (to yourself, and to the Office of the Industrial Tribunals).

        NOTE:

        During the CMPH, the employment judge will probably impose an overall limit on the number of the pages that can be contained in the Bundle. The overall expectation is that you and your Respondant will agree on what documents will be contained in the Bundle.

        If you agree that any particular document can be included in the Bundle, that does not mean, or imply, that you agree with what the document states or contains.

        The listing of the Hearing

        In advance of the CMPH:

        • You should have decided how many witnesses will be giving evidence (during the Final Hearing) on your side of the case
        • The Respondent should have identified how many witnesses they are going to call (during
          that Hearing) on their side of the case.

        During the CMPH, the judge will want to know how many witnesses are to be called, so that the required duration of the Hearing can be decided on. During the CMPH, the judge will specify the date, or dates, on which the Hearing will be held.