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Preliminary Hearings under the draft new ET rules

Rules 39 to 42 of the proposed new Tribunal rules of procedure relate to the newly entitled ‘preliminary hearing’ (‘PH’), significantly simplifying the existing regime relating to CMDs and PHRs.  No longer will it be necessary for parties to vex over the nature of the application or directions which they are seeking with a view to determining the type of hearing for which they need to apply, or in the course of which a particular Order may properly be sought.  A Tribunal may direct a PH on its own initiative (rule 41) and there may be more than one PH in any case (rule 39).

The scope of a PH is dictated by rule 39.  A PH is a hearing at which the Tribunal will do one or more of the following: (a) conduct a preliminary consideration of the claim and make case management directions (including those relating to the conduct of the final hearing); (b) determine any preliminary issue (defined to mean a substantive issue which will not necessarily determine liability); (c) consider whether a claim or response should be struck out under rule 34; (d) make a deposit Order under rule 36; (e) explore the possibility of settlement or ADR (including judicial mediation).

Note that rule 42 provides that a PH shall be conducted in private, except where it involves the determination of any preliminary issue or a strike out of the claim or response under rule 34. (That is expressly subject to any Order made under rule 55 preventing or restricting the public disclosure of any aspect of the proceedings where appropriate).  In the absence of a prior written request by a party in accordance with rule 41, PHs will be conducted by an Employment Judge alone.

Consistent with rule 2 of the new rules (and paragraph 10 of Underhill J’s accompanying report), the terms of rule 39(e) (see above) suggest that Tribunals will be encouraged to take a much more directional and directive approach to exploring the possibility of settlement/ADR than has to date been the case.  These rules are likely to afford greater opportunity for Tribunals to highlight potential pitfalls and their consequences to those seeking to pursue weaker claims or lines of defence.

Finally, note that rule 53 confers upon a Tribunal conducting a PH the right to direct that it be treated as a final hearing (as defined by rule 43), or vice versa, if the Tribunal is properly constituted for the purpose and is satisfied that neither party will be substantially prejudiced by the change.  In practice, it is far more likely that a final hearing will be converted into a PH than vice versa: other than in the most straightforward of cases, the prospect that the two pre-requisites to converting a PH into a final hearing will apply must be slim.
Related link:  Profile of Naomi Ellenbogen
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