Preliminary Hearing

[London223]

Hello,

I have an upcoming preliminary hearing. The letter from the Tribunal refers to this as a "Preliminary Hearing for case management by video hearing" and we have been asked to complete an agenda in advance. I would appreciate some advice on the below as I am struggling to find a clear answer:

1. Will this hearing be publicly available / recorded on the gov.uk website (i.e. the page that contains the catalogue of Tribunal Decisions)?

I note that the gov.uk site often reports preliminary judgements, which appear to distinct from case management hearings. What I am unclear on are the circumstances in which a case management hearing becomes a substantive hearing with a judicial decision that is then made public.

2. If a case settles after the preliminary hearing but before the final hearing, will any preliminary judgements still be published?

3. How difficult is it to be granted a restricted reporting order (for example where an initial is used for the claimant as opposed to full name)? The impression I get is that this is relatively rare but unclear to what extent.

Thank you for any help

[ULA]

In response to your questions:

1. If it is purely case management then no it is not a public document. If there is any decision on the claim or part of the claim leading to a judgement or reasons for decisions then yes this will be a public document.

2. Yes as point 1 preliminary hearing judgements are published event if settle prior to final hearing.

3. It is very rare.

[London223]

That's very helpful, thank you.

1. What are the circumstances in which a preliminary hearing for case management becomes a hearing in which a decision is made? Does that need to be flagged in advance (for example, on the agenda) or can the judge simply make a decision in the moment based on something that comes up during case management?

2. If the respondent references striking out part of the claim within their ET3 does this mean that there will be a judgement at case management which will be made public (i.e. if this request was refused)? In this instance the application was based on incorrect facts and in our view has little prospect of success (the respondent stated that we had not claimed a continuing act under s. 123 but this was in the ET1 and they seemingly did not read that paragraph).

3. Are there any particular criteria or approaches to a restricted reporting order which make it well founded and more likely to be granted?

[ULA]

Further responses to your questions

1. As you will have noted from the Case Management Agenda there are a number of questions and depending on how they are responded to by either party, that may lead to the upcoming preliminary hearing (PH) moving wider than purely setting the Case Management Order i.e. the timetable with potential dates / timescales for the proceedings to move forward.
This is further supported by what you have said at point 2 with there being a possible request by the respondent to Strike Out part of the claim, as asserted in the ET3.

That being said, it will depend on the time that has been allocated for this hearing. If there are substantive issues to decide upon before a full hearing can take place, then it is likely that a further PH will need to be scheduled. I can therefore not give you a certain answer as to whether or not the outcome of this PH will fit into the limited parameter of what would not be published.

2. I believe my answer to this is covered above. If there is a judgement or decision made about anything in this hearing, including about a Strike Out, then it will be published.

3. As I have stated it is not easy to have an order granted and employment tribunals have become increasingly reluctant to allow any restriction on the full details of any case being held in public. Without understanding a bit more about why you are so concerned for anonymity, then it is difficult to advise further on how best you could approach this, particularly if it is not something more than future employers or friends, former colleagues etc having access to potentially sensitive information.

[London223]

Hi all

I had another question I would be grateful for steer on.

In ET claims related to discrimination, my understanding is that the Tribunal can award compensation for personal injury, in addition to injury to feelings. It seems like the Tribunal are conscious of overlap between these two awards, but in any event, both can be awarded. Is this correct?

Currently my claim / ET1 makes no reference to personal injury, but I believe compensation for this is valid and supported by medical evidence. My question is what are the mechanics by which such an award is sought in the Tribunal. For example:

• Does it simply just need to be referenced on a schedule of loss? If so, how do you assess value (i.e. is there a similar benchmark such as Vento bands)?
• Does it need to be referenced on the ET1?
• Is the underlying legal basis of the claim still the EQA (i.e. damages for personal injury are an inherent remedy within the EQA), or does the claim need to be made through another legal mechanism (e.g. Health & Safety at Work Act). If so do these statutes need to be referenced in an ET1?

It seems that many employment lawyers do not also advise on personal injury, in which case, this must be something claimants come across relatively regularly.

[ULA]

In most discrimination cases, the injury to feelings compensation covers impact on your health. In some rare cases, you might have suffered a physical injury or a more serious mental health problem. If so, you can make an additional claim for personal injury, however you will need a medical report prepared by a relevant expert or other compelling evidence to prove the unlawful discrimination by your employer caused the mental health or physical injuries suffered.

Compensation which may be awarded by an Employment Tribunal for personal injury is calculated under two headings:

General damages - this relates to what is known as pain, suffering and loss of amenity, e.g. loss of ability to take part in hobbies This is calculated with reference to the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases (JSB Guidelines) which are used to act as a guide for the level of award for General Damages. They provide a range of compensation for each category of injury.

Special damages - this relates to loss of financial compensation for the injury the claimant has suffered from. This includes compensation for loss of earnings and other financial losses.

If you are claiming for personal injury you should have referred to this as part of your ET1 under section 9.2, which asks about the compensation and remedy you are looking for and this should be included in your Schedule of Loss (SoL).