Following the introduction of the new ET Rules, my recent experience of the London South employment tribunal is that they have developed a practice of sending out certain pro forma letters in advance of a preliminary hearing. There appear to be two types of pro forma letter:
- The first notifies the parties that the forthcoming preliminary hearing will be heard in private and will consider procedural matters, such as the directions required, determining the issues to be decided by the tribunal at the final hearing and so forth.
- The second notifies the parties that the forthcoming preliminary hearing will be heard in public and will be to determine a preliminary issue, such as employment status, or a strike-out application.
The distinction between the two types of letter appears to be founded in rule 56 of the new ET Rules which specifies that preliminary hearings are to be conducted in private except where the hearing involves the determination of a preliminary issue or a strike-out.
An employment judge may be slow to strike out a claim or response at the first preliminary hearing unless the second type of pro forma letter has been sent to the parties informing them that the hearing will be conducted in public and putting them on notice that a strike-out application will be considered. Indeed, a late addition to the new ET Rules is the requirement that the parties be given at least 14 days’ notice if a preliminary issue or application to strike-out is to be considered at a preliminary hearing (rule 54).
This is problematic because a refusal to hear a strike-out at the first preliminary hearing will inevitably lead to wasted costs as a further preliminary hearing will have to be listed. This was, after all, precisely the kind of situation that the new Rules intended to avoid by getting rid of Case Management Discussions, allowing a strike-out application to be potentially considered at any preliminary hearing. Furthermore, it is not inconceivable that the employment tribunal administrative staff may, on occasion, send the wrong type of letter out even where a party has applied for a strike-out in good time before that first hearing.
There is at least an argument that refusing to hear a timely strike-out application purely on the basis that an incorrect type of notice of hearing has been sent out to the parties is wrong.
Firstly, rule 37(2) provides that the tribunal may strike out a claim or response as long as the party has been given a reasonable opportunity to make representations in respect of the application, either in writing or at a hearing if requested. This requirement is plainly satisfied if the application to strike out (copied in to the other side) has been made in good time before the hearing.
Secondly, under rule 56, the tribunal has the power to direct that the entirety of the hearing be in public. There is a powerful argument that if the strike-out application has been made in good time and the other side has been given a reasonable opportunity to respond to it, the overriding objective (which includes avoiding delay and saving expense) requires that the first preliminary hearing be converted there and then to a public hearing to enable the application to be heard.
Finally, the tribunal has the power under rule 5 to vary the requirement in rule 54 to give 14 days’ notice that a strike-out application will be considered at a preliminary hearing.
The practical lessons for litigants trying to strike out their opponent’s case at the earliest stage are:
- Make sure the application is made in good time before the first preliminary hearing.
- If the tribunal send the wrong type of notice of hearing out, correct the position before the preliminary hearing to avoid a potentially wasted trip to the tribunal.