ET3, Case Management and preliminary hearings in England and Wales
This advice applies to England and Wales 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. It will look something like this:
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
- 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?
Considering these questions will allow you to re-assess the strength of your case, review what additional evidence you need to gather and re-evaluate your analysis of the claim. This is an ongoing process but receipt of the ET3 is a natural review point.
Completing the case management agenda and attending 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. There’s also a Microsoft Word version of the Agenda available from gov.uk.
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. Once completed, it should be sent to the tribunal and to the other side at least 2 days before the hearing, but if you miss this deadline for some reason, send it anyway, take 4 copies with you to the hearing, and be prepared to explain the reason for the delay.
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.
Keep notes of what you’re ordered to do in case there is something you need to do before you get the written Order.
You might be offered the chance for a judge to give an initial opinion about the strengths and weakness in each side’s case at the end of the preliminary case management hearing. The judge will explain his or her views on the case. The intention is that this will help each side be realistic about their chances of success and encourage settlement.
It can by a useful option if:
- you’re really not sure how strong your claim is,
- you think your claim is good but your employer does not agree and is refusing to negotiate with you.
The disadvantage is that it’s often difficult for a judge to see the strengths of a case until they’ve heard all of the evidence. This could lead to the judge giving an overly-negative view of your case, making it difficult for you to negotiate with the employer.
For further information see Presidential Guidance on Judicial Assessments
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 the Presidential Guidance on judicial mediation.