Practical Law

After the ET1 and ET3 are filed, the employment tribunal will require parties to attend a preliminary hearing to determine the issues in the claim. The notice of hearing states that the parties should submit an Agenda to the tribunal in advance of the hearing, but that in any event, parties are permitted to make oral submissions. It can be all too common for very little work to be done on the Agenda or List of Issues prior to that first preliminary hearing. For parties who are legally represented, this is a wasted opportunity.

The first opportunity to present a case in person before the judge must be seized fully. If parties have so far not provided detail, much of the Agenda template may remain difficult to complete. However, both sides benefit from drafting a detailed List of Issues . Instead of trying to squeeze the List of Issues into the allotted template Agenda box, it is best to separate it out into a full Word document to be sent ahead electronically and brought in hard copy for the other side and the tribunal. When drafted by solicitors, the List of Issues can assist when instructing counsel or experts. When drafted by counsel, it can assist in drafting skeleton arguments for strike out applications, and the eventual structuring of submissions.

“But I’m the claimant – won’t I be giving the game away?” No. A well-drafted List of Issues for the Claimant will give them the best possible opportunity to consider the weight of currently available evidence in their favour, and to begin to address any difficulties. The airing of issues can help prevent the need for a last minute amendment, by identifying methodically all relevant heads of claim. It also forces the respondent to ask questions of its employees, and reveal its case early. This should avoid later changes when the respondent may, for example, believe it has discovered a “better” reason for termination, which more easily resists challenge. For legal representatives, the List of Issues can assist the understanding of lay clients and give them a realistic view of the prospects of their case.

“The ET1 is empty/overly verbose/unclear – what can the respondent draft?” The List of Issues is an excellent opportunity for respondents to highlight omissions, attempt to undermine the claim and put the claimant to work on particularisation. Not only does this enable the respondent to give a meaningful response, but it can also help in cases where the claimant’s representatives seem to be assuming some kind of settlement is automatically possible. The respondent need not alert the claimant to the possibility of different heads of claim (by, for example, identifying all the different types of disability discrimination that could be in issue). However, the respondent can use the List of Issues to identify the number of outstanding questions on the facts as presented, even if it is simply:

• What type of discrimination is alleged?

• When does the claimant state that this physical impairment began to affect him or her?

• What are the effects on his or her day-to-day activities?

• What is each act of discrimination alleged, and at what date and time is each alleged to have occurred?

“Why now? The judge will want to address this at the hearing with the litigant in person.” When appearing against a litigant in person, a clear draft List of Issues given to the judge ahead of the preliminary hearing will save countless hours during that hearing. It will also provide an excellent record of matters already addressed, which can be used in any subsequent hearings. It will explain to the litigant in person exactly what is required of them and can highlight to them the weaknesses in their case. It can provide an opportunity for an invitation to withdraw certain, often widely misunderstood, claims (such as victimisation, when the claimant fails distinguish between initial acts and “victimising” acts). For litigants in person alleging disability discrimination, sometimes numerous physical and mental impairments are listed. Sometimes they continue adding to these over the course of further hearings. The List of Issues can be used to determine the list, and to ensure that there is an analysis of whether each alleged impairment meets the definition of disability and, for example, exactly which reasonable adjustments are alleged to have not been made.

The List of Issues can flag, along with the number of matters, the number of potential witnesses. This will give an indication of the length of hearing that might be required. The Agenda template requires an estimate for the length of final hearing. It is worthwhile breaking down the estimate into the constituent elements of the final hearing. A judge is far more likely to accept such an estimate, and the other side will find it far more difficult to challenge. My recommendation would be to separate out the estimates for reading-in, cross-examination, submissions, determination by the tribunal, judgment, and the time that might be needed to determine remedies. It will be more desirable to shorten the hearing than to try and lengthen it at the last minute, or go part-heard. Think about what can usefully be separated into a preliminary hearing.

An exhaustive List of Issues, even if it is later trimmed for the final draft going to the other side and to the tribunal, is invaluable as a touchstone for the prospects of success, and the actions that need to be taken, throughout the duration of the claim.