Preliminary Hearings What They Are and What to Expect

Most employment tribunal cases include preliminary hearings before the main trial. Understand case management, substantive issues, strike out, and deposit orders.

What's the difference between a preliminary hearing and a full hearing?

A preliminary hearing is a short hearing (usually 1–2 hours) to deal with procedural matters or threshold issues. A full hearing is the main trial where all evidence is heard and judgment given. Preliminary hearings can be "case management" (sorting directions and deadlines) or "substantive" (deciding threshold issues like whether the tribunal can hear the case). Most cases have at least one preliminary hearing before the full hearing.

What happens at a case management preliminary hearing?

The judge discusses the case with both parties and sets directions: deadlines for disclosure of documents, deadlines for witness statements, whether expert evidence is needed, dates for exchange of evidence, and the anticipated length of the full hearing. The judge may also try to help settle the case. It's largely procedural — you're not yet defending your claims on the merits.

What's a substantive preliminary hearing?

A substantive hearing deals with substantive (real) legal issues that might end the case before the full trial. These include: (1) jurisdiction — does the tribunal have power to hear the case?; (2) strike out — is the claim legally hopeless?; (3) deposit order — is the claim weak and should the claimant pay a deposit?. The judge hears argument on these issues and decides. If the tribunal has no jurisdiction, your case ends there.

Do I need a solicitor for a preliminary hearing?

No. Many litigants in person handle preliminary hearings alone or with a McKenzie friend. Case management hearings are straightforward — you just need to discuss evidence and timings. Substantive hearings (strike out, jurisdiction) are more legalistic, so a solicitor helps, but is not essential if you prepare well and make clear arguments.

What's a strike out?

A strike out is when the tribunal decides your claim is legally hopeless and dismisses it without a full hearing. The test is high — your case must be "bound to fail." Minor defects or weak evidence don't lead to strike out. The employer would have to show that, even if you prove every fact you allege, the law still doesn't help you. Strike outs are rare for discrimination claims.

What's a deposit order?

A deposit order requires you to pay money (usually £1,000) to the tribunal if your claim is weak. If you lose, you lose the deposit. If you win, you get it back. The judge must think your claim has "little reasonable prospect of success." Deposit orders are meant to discourage weak claims and encourage settlements. Failure to pay means your claim is struck out.

How do I prepare for a preliminary hearing?

For case management: prepare a list of key issues in the case, your disclosure timeline, and any dates you're unavailable. For substantive: prepare written submissions (a short document explaining your legal position), evidence of the threshold issue, and anticipate the employer's arguments. Bring relevant documents. The more prepared you are, the more persuasive you'll be.

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Preliminary Hearings

What They Are and What to Expect

Typical preliminary hearing length

From case management to hearing

Case management or substantive

The two types of preliminary hearing

Most employment tribunal cases include a preliminary hearing before the main trial. There are two types:

Case management preliminary hearing

This is the most common type. It\'s a procedural hearing to organise the case. The judge meets with both sides (usually in person, sometimes by video or phone) and discusses:

• • What are the key issues in dispute?
• • What documents need to be disclosed (and by when)?
• • When will witness statements be exchanged?
• • Is expert evidence needed (e.g., for equal value assessments)?
• • How long will the full hearing take?
• • What are the dates for the next steps?

The judge issues a "case management order" (directions) setting out deadlines and the timeline to the full hearing. Most case management hearings take 30 mins – 1 hour.

Substantive preliminary hearing

This hearing deals with substantive (real) legal issues that could decide the case before the full trial. Common substantive issues include:

• Does the tribunal have power to hear the case? (e.g., was the claim filed in time?)
• Is the claim legally hopeless and should be dismissed?
• Is the claim weak enough to require a deposit?
• Is the outcome so clear that no full hearing is needed?

These hearings take longer (1–2 hours or more) because the judge hears arguments on law and evidence, not just procedure.

Case management: getting your case organised

At a case management preliminary hearing, the judge helps both sides organise the evidence and agree a timetable for the full hearing. It\'s collaborative, not adversarial.

The judge will typically:

Identify the issues in the case

The judge asks both sides: what are the disputed facts? What law applies? By narrowing the issues, the case becomes more focused and the full hearing shorter.

Order disclosure of documents

Both sides must give each other copies of relevant documents. The judge sets deadlines (e.g., "Disclosure by 15 June 2024"). If one side refuses to disclose, the other can ask the tribunal to force it.

Order exchange of witness statements

Each side prepares written witness statements (sworn accounts). The judge sets a deadline for exchange (e.g., 28 days before the hearing). Witnesses must sign the statement under penalty of perjury.

Consider expert evidence

Some cases need experts (e.g., equal value requires an independent job evaluation expert). The judge orders this early so the expert can work. Expert reports take time — for equal value, add 6–12 months.

Estimate the hearing length

The judge asks how long the full hearing will take. Simple cases: 1 day. Moderate: 2–3 days. Complex: 5+ days. The tribunal will try to fit this in the calendar.

Try to encourage settlement

The judge may suggest both sides consider settlement. ACAS can help broker a settlement agreement. If both sides agree, the case ends without a hearing.

The result is a "case management order" — a document listing all the directions and deadlines. You must comply with these or risk sanctions.

Substantive preliminary hearings: strike out, deposit, jurisdiction

Substantive hearings deal with legal issues that might end the case before the full trial. These are more contentious and require preparation.

Striking out a claim

The employer (or tribunal) may ask for your claim to be "struck out" — dismissed as hopeless. The test is strict: the tribunal must be satisfied your claim is "bound to fail" even if you prove every factual allegation. It\'s a high bar.

Examples that might be struck out:

• • You claim discrimination on a ground not protected by law
• • You claim unfair dismissal but you\'re not an employee (you\'re a contractor)
• • You claim constructive dismissal but there\'s no evidence of a breach of contract

If struck out, your case ends. You can appeal, but successful appeals are rare.

Deposit orders: weak claims

If the tribunal thinks your claim has "little reasonable prospect of success," it may order you to pay a deposit (usually £1,000) to the tribunal. The idea is to discourage weak claims and encourage settlement.

If you pay the deposit and then lose the full hearing, you lose the deposit. If you win, you get it back. If you don\'t pay, your claim is struck out.

Deposit orders are controversial and relatively rare. They\'re more common in claims with weak evidence or unclear legal basis.

Jurisdiction: can the tribunal hear the case?

The employer might argue the tribunal has no jurisdiction (power) to hear your case. Common jurisdiction issues:

• • Was the claim filed in time? (3 months from incident)
• • Are you an employee? (or a contractor, self-employed, worker?)
• • Did ACAS conciliation happen before filing? (required for discrimination claims)
• • Was the complaint made in good faith? (for victimisation)

If the tribunal finds no jurisdiction, it dismisses your case. You can appeal, but if the issue is clear (e.g., you filed 6 months late), you\'ll lose.

How to prepare for a preliminary hearing

Preparation is key. Even for case management, showing you\'re organised and thoughtful makes a good impression.

For case management hearings:

Prepare a short document identifying the key disputed issues. List what documents you have and roughly when they are from. Think about what witnesses you need. Be realistic about how long the full hearing will take. The judge appreciates honesty and clarity. If you have a McKenzie friend or solicitor, they can help, but it\'s not essential — the hearing is collaborative.

For substantive hearings:

Prepare written submissions (a short legal argument: 3–5 pages). Explain the law and how it applies to your facts. Anticipate the employer\'s arguments. Bring evidence supporting your position (e.g., for a strike out hearing, bring documents showing you\'re an employee, not a contractor). If jurisdiction is disputed, gather evidence showing you filed in time or have a good reason for delay.

Arrive early. Dress formally. Be respectful to the judge and the employer\'s representatives. If you can\'t attend, ask for a postponement in advance (last-minute requests are rarely granted). Keep to your time limit — judges are strict about this. Bring copies of any documents you\'re relying on for the judge and the employer.

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