The Law at Work

Case management

Introduction
 

With effect from 29 July 2013, under the provisions of the 2013 Rules case management discussions were replaced with preliminary hearings.


A preliminary hearing can be fixed at any stage during the proceedings by the Employment Tribunal acting on its initiative or the application of one of the parties. The Rules set out particular powers that the Employment Tribunal may exercise at its discretion, but this is not intended to restrict a Tribunal's general powers in such matters.
 

An application for a case management order may be made either during a preliminary hearing or to the Tribunal in writing.


Under the provisions of Rule 92 of the 2013 Rules, (and with the exception of an application for a witness order, or where the Tribunal has ordered a departure from this Rule in the interests of justice) any correspondence with the Tribunal, including case management applications must be copied to the other party. In effect, the party who has made the case management application must notify the other party that objections to the application can be sent to the Tribunal as soon as possible. In addition, this should be confirmed to the Tribunal, and there should be an indication that this was done, for example stating that the other party has been included in the correspondence, or simply using "cc" or similar.


A Tribunal may deal with a written case management application in writing, or alternatively, order that the application is to be dealt with at a preliminary or final hearing.


If a party has had a reasonable opportunity to comply with a case management order, or to make representations in respect of the order, then a failure to comply with the order may result in all or part of a claim or a response being struck out. A breach of an order is also one of the grounds for which a costs order or a preparation time order can be made. 


Additionally, an Employment Tribunal can issue a case management order which may vary, suspend or set aside an earlier order if this is necessary or in the interests of justice. This may happen where a party who has been affected by an earlier order did not have a reasonable opportunity to make representations before the order was made.


The types of order that may be made under an Employment Tribunal's case management powers include orders for:
 

  • Payment of a deposit.

  • Amendment.

  • Additional information.

  • Disclosure of documents.

  • Written answers to questions.

  • The attendance of a witness.


In addition to the above, an Employment Tribunal can issue an "unless order" specifying a date for compliance with an order. If a party does not comply with an unless order, this will result in the claim or response being dismissed in whole or in part. If dismissal occurs in these circumstances, there is a right to apply to have the order set aside in the interests of justice. Such an application must be made in writing within 14 days of the date that the notice of dismissal was sent. 


Payment of a Deposit


Under the provisions of Rules 39 and 52, at a preliminary hearing if an Employment Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, the Tribunal may make an order requiring a party ("the paying party") to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.


The Employment Tribunal must make reasonable enquiries into the paying party's ability to pay the deposit and have regard to this when deciding the amount of the deposit. The Tribunal's reasons for making a deposit order will be provided with the order, and the paying party must be notified about the potential consequences of the order. 


If the paying party fails to pay the deposit by a date which will be specified in the order, the specific allegation or argument to which the deposit order relates will be struck out. Where a response is struck out, the consequences shall be as if no response had been presented.


If, at any stage after the payment of a deposit order, the specific allegation or argument put forward by the paying party does not succeed, then the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of Rule 76 (which deals with costs and preparation time orders.) Unless the contrary is shown, the deposit will be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders.) If, on the other hand, the specific allegation or argument succeeds, then the deposit will be refunded.


If a deposit has been paid to a party and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.


Amendments


An Employment Tribunal can exercise its discretion to permit a Claimant or Respondent to amend a claim or response. Such amendments may be permitted under the authority in Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore [1996] IRLR 661 EAT (which was determined under the former Rules). In determining whether an amendment is to be permitted, an Employment Tribunal must take into account all of the circumstances and balance the potential injustice to and hardship of both parties. 


If the amendment seeks to introduce an additional claim which is based on facts that have not already been stated in a claim which is out with the time limit for presenting such an additional claim, an extension of time should be considered in the normal way, for example, whether or not it was reasonably practicable for the additional claim to be presented earlier, whether it  would be just and equitable to allow the additional claim.


Under the authority in Selkent and in the authority of the Transport and General Workers Union v Safeway Stores Ltd EAT/0092/07, (also decided under the former Rules) if the amendment seeks to introduce an additional claim which is based on facts that have already been stated in the claim which is out with the time limit for presenting a claim (in effect, the amendment arises from previously facts in the claim that disclose more than one type of claim) then an Employment Tribunal will normally allow the amendment and permit the additional claim to proceed. 


Additional Information
 

An order for additional information is intended to enable each party to know the specific nature of the case that the party will face in advance of a final hearing.
 

An Employment Tribunal may act on its initiative, or a party may make a case management application for the provision of additional information. A failure to comply with an order to provide additional information may result in the claim or response being struck out in whole or in part. 


Disclosure of Documents


An Employment Tribunal can order any person to disclose documents or information that is relevant to the determination of the issues.


An Employment Tribunal will not normally make such an order for disclosure unless there is written evidence (for example correspondence from one party to another) that shows that a previous request was unsuccessful or not responded to. 


When disclosure is sought from a person who is not a party to the proceedings, an order may be made only when disclosure is necessary in order to dispose fairly of the claim or to save expense. 


Some documents are immune from an order for disclosure and include correspondence with and from professional legal advisers.

 
Written Answers to Questions
 

An Employment Tribunal, acting on its initiative, or the application of a party to the proceedings, may order either party to answer questions in writing. This may happen if the Tribunal considers that the answers may help to clarify issues that are relevant to the proceedings. 


Attendance of Witnesses
 

An Employment Tribunal can issue an order to require any person to attend a hearing. This will normally be to produce documents or information or to give evidence.
Witness orders are normally made if the witness is thought to have relevant knowledge which will be helpful to the Employment Tribunal in its determination of the issues, and the party seeking the order believes that the witness will not attend on a voluntary basis. 


The party seeking a witness order should ensure that an explanation is provided about why the attendance of a specific witness will be helpful to the Employment Tribunal. 


Claimant's who have been dismissed will frequently seek witness orders for former colleagues to attend a hearing. Those former colleagues may still be employed by the Respondent. The consequences for a Respondent to try and influence the evidence of such witnesses could be very serious.

Gavin Booth

The Law at Work

19 Etive Court

Cumbernauld

Lanarkshire

Scotland

G67 4JA

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