Pre-Hearing Review - Procedure in the Employment Tribunal

[handbagsandshoes]

I am currently conducting an unfair/wrongful dismissal claim at an Employment Tribunal.

I have recently been notified that the Judge has ordered a Pre-Hearing Review to discuss the following two matters:

1) Whether the Claimant should be ordered to pay a deposit
2) Whether to strike out all or part of the claim because it has no reasonable prospect of success

The hearing has been allocated 2 hours, however, I am a tad confused on the procedure for this hearing?

I believe that the Claimant has a reasonable prospect of success as the respondent has failed to carry out the investigation in a proper and fair manner....the investigation itself has a number of discrepancies which can clearly be seen in the paperwork such as notes and interviews etc. Also the Claimant is not in a position to pay a deposit as she is on benefits and has no money!

In terms of the hearing would written representations with evidence such as the paperwork from the investigation need to be submitted to the tribunal in advance, or can you just rock up to the tribunal on the day with a copy for everyone? It's just that there is a lot of disclosure documents (not including those from the respondent whom has failed to send copies in line with the case management orders!)

Also, will the tribunal look at the witness statements at the Pre-Hearing Review?

I would appreciate any help

Thank you

[Eloise01]

Re: Pre-Hearing Review - Procedure in the Employment Tribunal

It's slightly difficult to advise without knowing why the respondants lawyers are asking for the PHR, and I know nothing at all about the claim! A PHR is not a rehearsal of the case - it is about legal argument surrounding the context of the case. That's a bit difficult to explain in lay terms, but I'll have a crack at it.

Joe is claiming disability discrimination. He says his employer refused to make reasonable adjustments. If the employer did refuse reasonable adjustments without good cause, then Joe wins - that's what the case is about. A PHR is called - the respondant says that Joe isn't disabled, so there is no prospect of success because no discrimination could have occurred. The PHR is only concerned with whether Joe may be disabled. If it is clear that Joe isn't, then the respondant is right and there is no prospect of success. But if the PHR decides he may be (because only a tribunal hearing can decide he is) then the case goes ahead. That is why PHR's are short - they are not about the details of the case per se, but about the context in which the case exists. So the thrust of the argument is going to be around whether there is a case to be heard - not what the case is. So you should always have all your documentation with you, but you may not need any of it.

I probably shouldn't scare the bejeezus out of you, but best forewarned - it is not uncommon for PHR's to revolve around case law, that is, examples of why the case couldn't succeed. As a lay person you have pretty much no way of combatting this type of argument - you don't know case law, and can't compete. So don't try. Simply state why you think the case has a chance of succeeding.

I wouldn't worry about the deposit order bit for one simple reason - if the judge orders one (which has to be paid, unemployed or not) then you need to seriously consider your position, because this is the judge agreeing there is no reasonable chance of success. And the judge will tell you this in no uncertain terms. You would be very foolish to proceed with the claim after that, and stand in danger of a costs award against you.

Another hint - if your case is based solely on the investigation aspects, the respondant may be correct. Obviously I am surmising lots of things without any details, something I don't like doing. But it is the dismissal hearing that is the crux of a dismissal - if the investigation is allegedly flawed the chance to argue that is the dismissal hearing. "Here's one a prepared earlier": http://www.redundancyforum.co.uk/fre...-tribunals-do/ You might find this useful because the worst mistake people make about tribunals is misunderstanding what they do. You have to think differently in a tribunal than you do outside one. They operate an entirely different definition of "fair" than people usually do.

[handbagsandshoes]

Re: Pre-Hearing Review - Procedure in the Employment Tribunal

Thank you Eloise01

I asked the Tribunal, if the Respondent had asked for the PHR, and I was told that a Judge had ordered it himself.

The claimant was dismissed for gross misconduct and not following policies, but contends that part of the allegations are untrue, and the allegations that she does admit to she says that they do not amount to gross misconduct and instead of dismissing her, further training and support could have been provided, as she was experiencing a lot of stress and difficulties in the work place which the respondent was aware of.

In regards to the investigation, other members of staff committed the same mistakes however no investigation or disciplinary was carried out against them. Furthermore, she attempted to raise this at the disciplinary and appeal hearings but the respondent has just ignored it, stating that she is unfit to practice and work for them.

Am I right in thinking then that the tribunal will be focusing on whether the allegations amount to gross misconduct or not then? I know this will be difficult for you to say as I haven't said what the allegations are, but I think that's what the respondent will try and argue i.e. because of Polkey, whether the process is fair or not doesn't matter because she would have been dismissed anyway? Whereas the claimant wishes to argue that the allegations do not amount to gross misconduct, and she could have been offered training etc instead, however this wasn't the case as the investigation wasn't fair because the respondent just wanted to get rid of her?

(hope that makes sense!)

[Eloise01]

Re: Pre-Hearing Review - Procedure in the Employment Tribunal

This is bad. This is very bad. Judges rarely ever order PHRs of this kind, and when they do there is only one reason. They consider the claim misconceived. And based on what you have said here, I think I can see why. She has, and you have, made the classic error of believing that the tribunal will reconsider what the employer decided. Tribunals cannot do this. She attempted to mitigate her dismissal, and the employer didn't accept that mitigation - they didn't have to. She claims others did the same thing and weren't disciplined - even if you could prove that, it's not relevant. The tribunal hears her case and hers alone, not the allegations of other cases not in front of it. The one test left is whether dismissal was within the range of outcomes that a reasonable employer would consider - if it was, and judging by the terms of the PHR then the judge thinks it probably was, then she is screwed. It is almost certain that it is this last test that is the crux here, and your argument needs to be that nobody could consider dismissal to be a reasonable decision to take. And so far you don't appear to have that argument tied down because it seems that even you are saying that other outcomes were options, not that it was utterly unwarranted.

I think you need to go and reread that thread I pointed you to!

I can't guarantee that this is what the PHR is for, but given they information you have provided I can think of no serious contender for another reason. And it is clearly aimed at your case - the employer need do nothing because the tribunal is questioning your judgement, not theirs.

[handbagsandshoes]

Re: Pre-Hearing Review - Procedure in the Employment Tribunal

Thank you Eloise01! Your posts have been very helpful

[agy100]

Re: Pre-Hearing Review - Procedure in the Employment Tribunal

Thank you Eloise01! Your posts have been very helpful

Any update on this case?

I have an outstanding case which I intend to represent myself. The Employment Tribunal has ordered a case management discussion (CMD) in a few days' time, in which whether there is a need for a PHR will be decided.

This thread is useful for me to understand the procedures - thanks.

[charitynjw]

Re: Pre-Hearing Review - Procedure in the Employment Tribunal

Hi agy100,

Eloise01 no longer posts on Legal Beagles, but if you could give us an idea of your circumstances, we can offer you our best opinion.