Employment tribunals — How to complete an Agenda for Case Management form and prepare for the preliminary hearing

Matt Bradbury explains how preparing for a case management hearing will enable you to obtain the best results for your clients

This article was originally published in the July 2017 issue of Adviser magazine and was correct at the date of publishing.

In most complex employment tribunal claims, there will be at least one preliminary hearing before the final Hearing. There are two types of preliminary hearings; public preliminary hearings at which the tribunal will hear evidence and legal argument in order to determine a separate legal issue, and private preliminary hearings whose function is to do no more than make sure that both parties are cooperating with one another and the tribunal in order to ensure that the case is prepared properly for hearing. Private preliminary hearings can be described as case management hearings or case management discussions.

In less complex cases the tribunal will usually issue standard written instructions about case management when the notice of final Hearing is sent out to the parties.

In more complex claims of unfair dismissal and in discrimination claims, the tribunal is more likely to hold a case management hearing. The parties are required to attend so that the tribunal can:

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

Because no evidence will be heard, no findings of fact made and no judgments issued, case management hearings are conducted 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 cogently about the legal basis for their claim or defence, and what evidence is likely to be relevant.

Preparation is key

The importance of attending and being well-prepared cannot be underestimated. Case management hearings provide an excellent, early opportunity to show the tribunal and the other side that you mean business, that your case is well-founded and that you have an understanding of the law on which it is based and the facts you will be required to prove. They provide the best chance you’ll get to put right any defects a case that has been badly pleaded, for example by a claimant who issued it without any legal advice.

If the other side gains control of the case at this stage, it can be difficult to take it back. The other side will seize on any gaps in the factual allegations or legal arguments made in the ET1 to limit the scope of the claim and if there is nobody there to argue otherwise the tribunal is likely to be persuaded by them.

The case management hearing also allows you to request any amendments that are necessary; for example to correct the respondents name, add new claims or change the legal basis of the claim. If you don’t do this at the hearing with the other side present to make submissions, it will be harder to do so in future.

If you are planning to request an amendment, and if there is time to do so, give the other side notice of your intention; it’s polite and will allow them to prepare a response.

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, and set out the consequences of non-compliance such as the striking out of a claim or defence. These are sometimes called ‘unless’ Orders; ‘Unless you do x, y will happen.’

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, and should ask the tribunal to vary its instructions, for example by giving you more time to comply.

The Agenda for Case Management at Preliminary Hearing

When it sends out a notice of hearing for the private preliminary hearing, i.e. the case management hearing, the tribunal should enclose a copy of a standard form, ‘Agenda for Case Management at Preliminary Hearing’. If it is not enclosed, you should request a copy from the tribunal or obtain one yourself and work through it. An up-to-date version may be found here. 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.

When completing the form, it’s useful to have regard to the third Presidential Guidance on General Case Management for England & Wales, a good, understandable guide to employment tribunal case management.

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. If you take this approach you may be surprised at the high level of agreement between you and the other side about what the issues are which are to be determined by the tribunal, and what needs to be done by both sides to prepare for the final Hearing; any disagreements are likely to be about in whose favour the issues will be decided, rather than what the issues are. If you know where there is agreement, you can focus your case preparation efforts on areas where there is disagreement.

Working with the other side to identify the issues and reach agreement, if this is possible, opens the door to better and easier litigation generally. While an employment tribunal claim is adversarial, representatives on both sides also have a duty to the tribunal to conduct the case well. As professionals, they can and should work together in service of that duty and reach agreement via verbal or written communication where possible. Agreement may not be possible if the other side is unrepresented, the case is particularly contentious or the other side’s representatives are hostile. If agreement can’t be reached on what the issues are, it’s important to act reasonably at all times but to stand your ground.

The standard form — how you should complete it

What follows is the text of the standard form, with suggestions for how best to complete it. The questions on the form are in bold, and guidance in plain text.

Completed by: Claimant/Respondent

AGENDA FOR CASE MANAGEMENT

AT PRELIMINARY HEARING

Rules 29–40, 53 and 56 Employment Tribunal Rules of Procedure 2013

It will help the efficient management of the case if you complete this agenda, as far as applies and send it to every other party and the Tribunal to arrive no later than 2 days before the preliminary hearing. A completed agreed agenda is particularly helpful.

1. Parties

1.1 Are the names of the parties correct? Is the respondent a legal entity? If not, what is the correct name?

Any respondent named on the ET1 requires an Acas early conciliation certificate in the same name. If there is a discrepancy between the certificate and the ET1, this may be overlooked in the interests of justice, if it amounted to a minor error, but may also lead to the rejection of the ET1 and the need to apply for a reconsideration of that decision to reject.

If the same respondent is wrongly named in early conciliation and on the ET1, so that the claim was accepted, the claimant is able to apply for an amendment to the claim, so as to add or substitute the correct respondent, subject to the tribunal’s discretion.

The respondent must be a legal entity, either a person, a group of persons, or an incorporated or limited company. The trading name of a sole trader or limited company is not a legal entity. Tribunals are fairly flexible about amending corporate names where it is clear that the claim has been served on the wrongly named respondent, who has been aware of proceedings from the outset; it can be more difficult to add an entirely new respondent who has had no prior knowledge of the claim.

1.2 Should any person be joined or dismissed as a respondent? If yes, why?

You might want an additional respondent to be added, and one or more respondents might want to be removed from the case. When deciding whether to allow this, the judge will expect the claimant to provide reasons for not having named the additional respondent from the outset.

2. The claim and response

2.1 What are the complaints (claims) brought? If any are withdrawn, say so.

Here you should just give the titles of the claims, for example: ‘unfair dismissal’, ‘wrongful dismissal’, ‘unauthorised deductions from wages’.

2.2 Is there any application to amend the claim or response?

If yes, write out what you want it to say.

Any amendment should be resolved at the Preliminary Hearing, not later.

As mentioned above, the law on applications to amend a case is complex, and will be covered in a future article. It is harder to add new facts to a claim than to change the legal ‘label’ attached to the facts that have already been pleaded.

2.3 Has any necessary additional information been requested? If not, set out a limited, focused request and explain why the information is necessary.

If requested, can the relevant information be provided for the PH? If so, please do.

You might want to ask the respondent for additional information about its defence of the claim as given in the ET3. You’re not asking for evidence, just for enough information for you to understand the basis of the respondent’s defence. For example, a respondent might say, “We are not liable for a redundancy payment because there was a relevant transfer under the TUPE Regulations 2006.” A request for additional information might be, “Please state specifically, with reference to the 2006 Regulations, why you say that the events of February 2017 fell within the legal definition of a relevant transfer.”

If the ET3 says; “A decision was made to…” you might ask, “Please state the names of every person who made or was involved in making the decision to… and on what date(s).”

3. Remedy

3.1 If successful, what remedy does the claimant seek? This means, e.g. compensation or re-instatement where possible etc.

For example, compensation, a declaration, reinstatement in an unfair dismissal claim, a recommendation in a discrimination claim

3.2 What is the financial value of the monetary parts of the remedy?

All parties are encouraged to be realistic.

You should put the total compensation sought here, if possible. Being ‘realistic’ means understanding the principles on which compensation is awarded for the claim(s) you are bringing. If you’re unable to calculate likely levels of compensation, you should seek further advice.

3.3 Has a schedule of loss been prepared? If so, please provide a copy.

A Schedule of Loss is a detailed statement of how much compensation is being sought, and how that figure has been calculated. If you have completed one, you should take it to hearing. If you have been unable to do so, the tribunal is likely to order you to prepare one within set time limits after the hearing.

3.4 Has the claimant started new work? If yes, when?

This is important in cases where the claimant is claiming loss of earnings and has to show mitigation of loss. The Schedule of Loss must offset income received against loss of earnings.

3.5 In cases involving dismissal, please confirm whether the claimant was a member of an occupational pension scheme. If so, was it a defined benefit scheme or a defined contribution scheme?

A working group of Employment Judges has issued the fourth edition of Employment Tribunals: Principles for Compensating Pension Loss containing guidance for tribunals and parties.

4.1 What are the issues or questions for the Tribunal to decide?

It is usually sensible to set this out under the title of the complaints.

In any claim, there will be both factual and legal issues. Your answer should focus on the legal issues.

The factual ‘issues’ are the factual matters about which the claimant and respondent disagree. For example, if both parties agree that the claimant was dismissed on a certain date, that is not a factual issue between the parties. But if the claimant says they were dismissed and the respondent that they resigned, that is a factual issue for the tribunal to hear evidence on and determine.

If the claim goes to a final hearing considerable time will be saved if the parties can work to a set of agreed facts, in order to focus on facts that are in issue. Often, at the case management discussion, the tribunal will direct the parties to work together to create a schedule of agreed facts.

Rather than set out the factual issues here, suggest that the tribunal orders the parties to produce a schedule of agreed facts, in the form of a chronology setting out uncontested dates.

The legal ‘issues’ are the legal tests, or questions, that a tribunal must ask itself in a particular case, and then determine the answers, having heard all of the evidence and legal arguments.

Identifying the legal issues can be difficult if you’re unfamiliar with what is being asked of you. It does not necessarily require you to refer to the specific sections of legislation under which a claim has been brought, but you must have the relevant legislation in front of you, and draw out from its wording the key legal tests or questions. Some examples follow.

Example one; issues in an ordinary unfair dismissal claim

• Was there ‘a dismissal’?
• If there was, has the respondent shown a potentially fair reason for the dismissal — i.e. capability, conduct, redundancy, some other substantial reason etc
• If it has, was the dismissal actually unfair? That is, did the respondent, in the circumstances of this particular case, act reasonably or unreasonably in treating that potentially fair reason as sufficient reason for dismissing the claimant?
• If it was, what remedy or compensation should be ordered?

Example two: issues in a disability discrimination claim

Reasonable adjustments

• At the relevant times, was the claimant a disabled person within the meaning of the Equality Act 2010. That is, did the claimant have a mental or physical impairment that had a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities?
• If the claimant was disabled, did the employer fail to make reasonable adjustments, that is:

o Was there a provision, criterion or practice of the employer’s?

o What was it?

o In what way did it put the claimant at a particular disadvantage in comparison with persons who did not have an impairment such as the claimant’s?

o What steps was it reasonable for the employer to have to take to avoid that disadvantage?

o Did the employer take those steps?

• At the relevant time, did the respondent know, or could it have been reasonably expected to know, that the claimant had that impairment with that effect, and that the claimant was placed at the disadvantage claimed?

Discrimination arising from disability

• If the claimant was disabled, did the respondent treat them unfavourably because of something arising in consequence of their disability and. If so, was that treatment a proportionate means of achieving a legitimate aim.
• At the relevant time, did the respondent know, or could it have been reasonably expected to know, that the claimant had that impairment with that effect?

Remedy

• If either claim is upheld what remedy and/or compensation is at appropriate for the tribunal to award.

Remember that at the case management discussion, the tribunal is not asking you to say what the answers to these questions are, just to identify the questions. The employment judge will not hear evidence or expect you to make complex legal submissions. However they are likely to ask you to say what your case is, in relation to particular aspects of the case. It’s incredibly useful to be prepared to talk about your client’s case in this way.

For example, where the issue is whether the claimant is a disabled person, the tribunal may ask you to state:

• The nature of the claimant’s impairment
• What is the substantial adverse effect on normal day to day activities?
• What was the duration of that effect?
• List the acts by the employer that are alleged to be the ‘unfavourable treatment’ being complained about
• How is it alleged that these acts were ‘because of something arising in consequence of the claimant’s disability? What arose in consequence of the claimant’s disability, and how did the employer’s actions relate to that?

In light of this, it’s useful to prepare a document for your own use only at the case management discussion. Create a table with two columns. Set out the legal issues or questions in column A and, in column B, set out your own case on the answers to those questions.

For example, if one of the issues is, “Is the claimant a disabled person” the judge might ask you, “What do you say about that? What is your case on whether the claimant is disabled?” In column B, your planned answer might be: “We are saying yes, the claimant is disabled, and will show that her impairment, severe depression, had lasted for 12 months at the time of the events in question, and will show that the effect of her impairment did have a substantial (‘more than minor or trivial’) adverse effect on her normal day-to-day activities.”

If one of the issues is, “Was the claimant treated unfavourably because of something arising in consequence of her disability?” the judge might ask: “Please can you state precisely, or list, the actions of the employer on what date(s) that you say amounted to unfavourable treatment and explain why you are saying they were because of something that arose in consequence of her disability.”

4.2 Are there any preliminary issues which should be decided before the final hearing?

If yes, what preliminary issues?

Can they be added to this preliminary hearing? If not, why not?

Tactically it is often better for the claimant to have any preliminary issues decided either at the start of, or during, the final hearing; for example issues about time limits and whether there has been a continuing act of discrimination, or about whether the claimant is disabled. From a settlement perspective, a respondent may be more likely to settle where it is faced with bearing the cost of preparation for a final Hearing, including the preliminary issues, because it has been unable to attempt to dispose of the case with a knock-out blow at a preliminary hearing. One valid reason for arguing against a separate preliminary hearing is to say (if it is true!) that the findings of fact that the tribunal must make to determine the preliminary issue and the main issues are so intertwined that it makes no sense and serves no purpose to try and separate them.

5. Preliminary hearings

5.1 Is a further preliminary hearing needed for case management?

NB This should be exceptional.

If so, for what agenda items?

For how long?

On what date?

In most cases no, unless it is a very complex case. However the tribunal may call a further case management discussion if it looks as if the case management and preparation is drifting off course.

5.2 Is a further substantive preliminary hearing required to decide any of the issues at 4.1?

If so for which issues?

How long is needed?

Possible dates?

As mentioned above, if any of the legal issues are such that it would be appropriate to deal with them separately at a preliminary hearing, the tribunal may decide to do so, of its own motion or on the application of one of the parties. For example, clarification of the claim or defence might lead to a further preliminary hearing to consider strike out or a deposit order.

6. Documents and expert evidence

6.1 Have lists of documents been exchanged?

If not, date/s for exchange of lists

Each party will need to send to the other party a list of documents which they hold and which are relevant to the issues.

6.2 Have copy documents been exchanged?

If not, date/s or exchange of copies:

• for any further preliminary hearing
• for the Hearing

From the list of documents, any duplicates can be weeded out and an agreed set of documents created. Each party will then supply the other side with documents it does not yet possess. Usually this will be done by collating a final ‘bundle’ of agreed documents, rather than in separate batches.

6.3 Who will be responsible for preparing

• index of documents?
• the hearing bundles?

Date for completion of this task and sending a copy to the other parties?

The standard set of documents will be used to create an indexed and paginated bundle for use at the final hearing, and six copies made if the case is to be heard by a full tribunal of three, or four copies if heard by a judge sitting alone. This can be an expensive process. Strictly speaking it is the claimant’s responsibility to prepare the bundles if the respondent labours the point. However judges will often ask the respondent to prepare the bundles, because they, or their lawyers, are more likely to have more facilities and resources to do so. However, despite the cost and burden of bundle preparation, it can be advantageous for the claimant to offer to do do, particularly if the respondent is unrepresented or has incompetent representation, as they are unlikely to do a good job, and a well-prepared bundle is important.The date by which the final bundle is to be prepared should, if possible, be in good time before witness statements are to be exchanged, for the reasons set out below.

6.4 Is this a case in which medical evidence is required?

Why?

Dates for:

• disclosure of medical records
• agreeing any joint expert
• agreeing any joint instructions
• instructing any joint expert
• any medical examination
• producing any report
• asking questions of any expert
• making any concessions

Medical evidence will usually be required where:

• There is a dispute about whether the claimant is a disabled person
• Where the claimant is claiming damages for a personal injury caused by an act of discrimination
• where the respondent is claiming that any compensation should be reduced, because the claimant failed to mitigate their loss, and failed to seek or find alternative employment due to a condition or injury that was not caused by them.

Where the respondent argues that medical evidence from the claimant’s own medical personnel is inadequate, further reports from a consultant, or disclosure of the claimant’s medical records, might be ordered. If that further medical evidence is challenged, the tribunal may order the parties to agree upon, and jointly instruct, a neutral medical expert to examine the claimant, write a report and possibly give evidence at a hearing. The claimant will be expected to share the cost of this.

7. Witnesses

7.1 How many witnesses will each party call?

Who are those witnesses?

Why are they needed?

You should be prepared to state the number of witnesses that will be giving evidence for the claimant — not forgetting, of course, the claimant themselves! In a straightforward unfair dismissal case with evidence from the claimant and two witnesses from the respondent, usually a day is enough. In a more complex unfair dismissal claim, or discrimination claim, assume about 3 days. If the claimant will be relying on pro bona representation, remember that the more witnesses they call, the longer the hearing, and the less likely it will be picked up by a volunteer representative. Beware the respondent tactic of saying they will call numerous witnesses to artificially lengthen the hearing and make it more difficult for the claimant to get representation. Ask the tribunal to question the respondent on the relevance of their intended witnesses’ evidence.

7.2 Should witness statements be:

- exchanged on the same date?

- provided sequentially?

Dates for exchange:

• for further preliminary hearing
• for the final hearing

Witness statements should be exchanged simultaneously so that neither side has sight of the other side’s statements before they finalise their own. It’s recommended that there should be an exchange of statements at least 7 days, but probably 14 days, before the hearing, so that you or the claimant can prepare cross-examination questions for the other side’s witnesses.

When preparing the witness statements for the final hearing, you should remember that the tribunal will not read through the entire bundle of documents put together for the hearing. If you want the tribunal to take particular documents into account, you’ll need to ‘take them to’ the relevant pages in the bundle. The best way of doing this is to insert the page numbers from the bundle into the witness statements, and so the timetable for case preparation should require that documents are exchanged and the hearing bundles finalised before you have to prepare and exchange witness statements.

8. The hearing(s)

8.1 Time estimate for final hearing, with intended timetable.

Is a separate hearing necessary for remedy? If yes, why?

In an unfair dismissal claim, the respondent will give evidence first, unless the respondent disputes that there was a dismissal, in which case the claimant will go first. In a constructive dismissal claim or a discrimination claim, the claimant’s evidence will be heard first. If the claim involves unfair dismissal and discrimination, get clarification about who will go first, so that the claimant is prepared. If any proposed witnesses are only available for one day of a multiple day hearing, request that they give their evidence on a specific day and be released after they’ve done so

8.2 Dates to avoid (with reasons) or to list.

Any dates pre-listed by the Tribunal?

For example, claimant’s, respondent’s, witnesses’ or representatives’ hospital appointments, pre-booked holidays, expected week of childbirth, other commitments etc

9. Other preparation

9.1 Should there be admissions and/or agreed facts?If yes, by what date/s?

‘Admissions’ are concessions made by a party on a factual matter or legal point. For example, ‘Yes a meeting did take place on that day’ or ‘Yes it is accepted that there was a relevant transfer under TUPE’. Be very careful about making an admission or concession, as it can rarely be reversed. If you feel you are being pressured into making one and are not sure of the implications, you might ask for permission to consider it and respond to the tribunal and the other side within 7 days.

It’s often useful to work with the other side to draw up a schedule of agreed facts, in good time before exchange of witness statements, so that future evidence can focus on disputed facts, those facts that are in issue.

9.2 Should there be a cast list?

From whom and when?

Yes, if it’s a complex case with a large ‘cast of characters’.

9.3 Should there be a chronology?

From whom and when?

This is always useful if the case involves a complex set of dates — it might be combined into a schedule of agreed facts.

9.4 Are there special requirements for any hearing?

(e.g. interpreter, hearing loop, evidence by video, hearing partly in private under rule 50)

If yes, give reasons.

Parties or witnesses may need, for example, a BSL interpreter, regular breaks because of a medical condition, for the room to have a hearing induction loop, a language interpreter, or evidence given by video link, for example where a witness cannot attend the hearing because of travel distance or anxiety about travelling. Rule 50 deals with evidence being heard in private, for example where it concerns sensitive medical evidence or allegations of sexual misconduct, also with restricted reporting orders, and orders for anonymisation of a party in any public records of the case.

10. Judicial assessment/judicial mediation

10.1 Is this a case that might be suitable for judicial assessment?

In judicial assessment, if the parties agree, the judge will give an impartial, confidential assessment of the merits of the claim and defence, in order to promote settlement. It is not a ruling and a judge who gives an assessment cannot preside over any further hearings except further case management discussions. There is full guidance on the procedure here.

10.2 Are the parties interested in and do they consent to judicial assessment?

The consent of both parties is required.

10.3 Is this a case that might be suitable for judicial mediation?

A judge will only recommend judicial mediation if both parties are willing and if there is a reasonable prospect of a successful outcome. Judicial mediations are encouraged in discrimination cases where a hearing is likely to last for at least two days.

10.4 Are the parties interested in the possibility of judicial mediation?

10.3

JUDICIAL USE ONLY

If relevant, judge to consider whether criteria for judicial assessment/mediation apply and then raise with the parties and record response. If appropriate, conduct judicial assessment and/or list for judicial mediation subject to liaison as appropriate with listing and the REJ.

11. Any other matters

Matt Bradbury is an employment expert at Citizens Advice and employment subject editor on the Adviser editorial board.