ET3, case management and preliminary hearings in Scotland

This advice applies in Scotland only

Receiving and reviewing the ET3

The respondent will be sent a copy of your claim form (the ET1) and asked to complete a form responding to it (called an ET3) within 28 days of receiving the ET3. When you get this you need to check it carefully to see what is agreed and what isn’t, so you’ll know where you need to focus your efforts in gathering evidence.

• It’s normal to get a long response which seems to disagree with everything you say
• Make notes about what you disagree with in the ET3. It’s best to do it on a separate copy of the ET3, so you still have an unmarked copy in case you need it
• Compare it to your ET1 and work out what things you and the respondent agree on. There will be some areas where the main facts are agreed, like what adjustments you asked for. Look at the legal issues as well as the facts — do they admit you have a disability, or, if your claim is indirect discrimination, that they applied a ‘provision criterion or practice’? If you see a phrase like ‘the claimant is put to strict proof on the issue of …’ it means that they are disputing that point.
• Are they raising any defences? For example have they explained what their justification defence is (indirect discrimination) or why it wasn’t reasonable to make adjustments for your disability?
• Have they asked you to provide additional information? This is usually because the legal basis of your claim isn’t clear from your ET1. The tribunal will order you to provide the information if they agree that your case isn’t clear. It will save delays to your case if you provide the information before the tribunal makes an order
• Do you need any additional information about the ET3?
• Does your respondent say your claim is out of time?
• Are they asking for a preliminary hearing on any issue (eg time limits, or disability)?
• Does anything they’ve said affect whether you think your claim is still worth pursuing?

Date listing stencils

It is common practice for tribunals in Scotland to provide parties with what is commonly known as a date listing stencil. This is simply the tribunal’s way of requesting parties’ availability (and their witnesses’ availability) within certain dates. Before replying to the tribunal, you should carefully check and confirm your witnesses’ availability — it is more difficult to apply for a postponement on the basis of an unavailable witness if the tribunal has already given you the opportunity to provide unsuitable dates.

Certain cases are often “fast-tracked” in Scotland. This means that the tribunal will fix a hearing date and issue a notice to that effect to the parties (often prior to the receipt of the respondent’s ET3). This is common in cases relating to unpaid wages and breach of contract, and these cases will usually be heard by an employment judge sitting alone.

Case management agendas and preliminary hearings

In most discrimination claims, there will be at least one preliminary hearing before the final hearing. This will be a case management hearing, to:

• establish what claims are being made; and
• issue instructions to both parties about how it expects them to prepare the case

There might be a second preliminary hearing to decide a specific legal issue such as whether the claimant is disabled or to make sure that both parties are cooperating with one another and ensure that the case is prepared properly for hearing.

Case management hearings

These are usually held in private, by an employment judge sitting alone, either at a tribunal office or via a telephone conference. Typically they last no more than one or two hours.

The parties are expected to talk persuasively about the legal basis for their claim or defence, and what evidence is likely to be relevant.

The agenda for case management at preliminary hearing

You’ll usually be asked to complete a standard form to help prepare for the case management. This is called an ‘Agenda for Case Management at Preliminary Hearing’. A copy of the Agenda to be completed will be provided to you by the tribunal, usually along with an accompanying guidance note which sets out how the Agenda should be completed.

Completing it will focus your mind on the case and prompt you on all of the matters which will be discussed at the hearing, and doing so may help obtain the tribunal’s consent to hold the hearing over the telephone, if that is your preferred option. You’ll need to return the completed agenda to the tribunal 21 days before the preliminary hearing, sending a copy to the respondent or the respondent’s representative at the same time. The Respondent will usually return an agenda to the tribunal 7 days before the hearing, and will provide you with a copy as well. It is important to check the terms of the tribunal’s order as timescales may vary.

The other side will be asked to complete the same form from their perspective. Tribunals expect and encourage the parties to talk to one another, to explore and agree their responses in order to save tribunal time. You could suggest to the other side that you send them a draft of your completed agenda to see where you can agree, or ask them to send you their draft. Agreement may not be possible if the other side is unrepresented, the case is particularly contentious or the other side’s representatives are hostile.

Preparing for the case management hearing

Make sure you can:

• Identify every incident of discrimination (eg be able to list all the things the respondent did that was harassment)
• Explain what type of discrimination each incident was (direct, indirect etc) and be able to say what the client’s case is on each point (eg be able to identify the provision criterion or practice)
• Say what the client’s case is about time limits, if there is a dispute
• Understand whether the tribunal might want to hold a second preliminary hearing and whether you agree. The most common situations where this is likely to happen are when the claim is clearly out of time and you’re asking the tribunal to allow a late claim, and when the employer disputes that your client is disabled.

Be prepared to explain and justify anything you need to ask the tribunal to do, for example:

• If you want permission to correct the respondent’s name
• If you’re seeking permission to add new claims or change the legal basis of the claim
• request that the employer disclose documents

If you are planning to request an amendment, and if there is time to do so, give the other side notice of your intention.

Once the case has been clarified and put on a firm footing, the tribunal will go on to issue a set of instructions or directions to the parties about how it expects the case to be conducted going forwards. Instructions or directions are often formalised as Orders of the tribunal which set out the timetable and the consequences of non-compliance such as the striking out of a claim or defence.

For this reason, if you feel that you cannot realistically comply with an instruction or direction, whether at all or in the time frame proposed by the tribunal, you should not agree do so. Ask the tribunal to vary its instructions, for example by giving you more time to comply.

Judicial mediation

You might be offered this by the judge if the hearing in your case is likely to last 3 or more days, particularly if you’re still working for your employer. You and your employer both have to agree. You will go to the tribunal where a tribunal judge who is a trained mediator will try to help you reach a settlement. The mediation usually lasts up to 1 day. It isn’t a full hearing — the judge isn’t there to decide your case, so there won’t be discussions about the rights and wrongs of your complaint.

It’s up to a tribunal judge whether to offer judicial mediation, but it’s something you should consider seriously is it’s offered. It’s much less stressful than a tribunal hearing, it’s free, and if you can’t agree a settlement your case will just carry on to a hearing.

If you attend a mediation you should:

• take an up to date statement of the compensation you’re claiming
• know whether you want something as well as, or instead of, financial compensation, like a change in your employer’s policies or a reference
• work out your ‘bottom line’ — the absolute minimum you’re prepared to accept. This isn’t just the figure you’d like to get, although you should think about that too. It’s the amount you’re prepared to walk away from and take your chances at a hearing.

For more information see Judicial Mediation at employment tribunals in Scotland on gov.uk.

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