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If you're asked to attend a preliminary hearing

This advice applies to England

You might have a preliminary hearing before your main employment tribunal hearing if:

  • your case is complicated

  • the issues to be decided are not completely clear

  • your case involves discrimination

It’ll usually be heard by a judge alone.

You might have more than one preliminary hearing. 

The tribunal will have sent you a letter if your case will have a preliminary hearing. The letter should have explained what the hearing is about. It might be about:

  • managing the case - including setting a date for the main hearing

  • dealing with an issue which needs to be decided before the main hearing can take place - including clarifying your claim

The letter will also tell you if there’s anything you need to do to prepare for the hearing. 

At a preliminary hearing the judge could:

  • decide if any of your claims or your employer’s responses shouldn’t be discussed at the main hearing - this is called being ‘struck out’

  • decide if you need to pay a deposit to continue with your case

  • decide if you need an expert’s report and who’ll pay for it - for example if you’re claiming disability discrimination and your employer says you’re not disabled

  • see if you can settle your case before it goes to a main hearing 

  • agree to judicial mediation or a judicial assessment, if you and your employer want it

If your preliminary hearing is about managing the case

This is usually a short hearing. 

The tribunal will usually send you and your employer a form called a ‘case management agenda’. This asks things like:

  • if you want to withdraw or change part of your claim

  • if you need any extra information - you’ll need to explain what it is and why you want it

  • what you want to get from the tribunal - like compensation

  • if there are any issues which the tribunal needs to decide before the case can continue

If you can agree dates and other issues on the agenda with your employer before the hearing, this will speed up the hearing. The tribunal will then make orders confirming what you and your employer have agreed.

The judge might also set the date for the main hearing, so make sure you have a list of dates when you or your witnesses aren’t available. 

If you need help with a case management agenda, talk to an adviser.

If your preliminary hearing deals with an issue to be decided before the main hearing

The tribunal might need to make a decision on a particular point before the case can continue. The point to be decided is called a ‘preliminary issue’. Preliminary issues are things like:

  • if you’re an employee

  • if you’ve worked for your employer for long enough

  • if you’ve made your claim within the relevant time limit

  • if you’re disabled

A hearing to deal with a preliminary issue will be very much like a main hearing, just shorter as it will only be about the issue to be decided. You can find out more about what a main hearing is like

If you need evidence from an expert

In some types of case, you might need evidence from an expert - for example, if your case is about disability discrimination and your employer says you’re not disabled. 

The tribunal might order an expert to prepare a report. The expert is called an ‘expert witness’. 

Often the report from the expert witness will be enough and they won’t need to attend the hearing. If they need to attend the hearing, they’ll also have to prepare a witness statement. You can find out more about witness statements

Check when your claim can be struck out

A tribunal can strike out your claim or part of it if:

  • it has no reasonable chance of success

  • you’re only bringing it to retaliate against your employer or fellow worker

  • has no basis in law

  • you or your representative has behaved unreasonably

  • you haven’t done what a tribunal has ordered you to do

  • you haven’t actively pursued your claim- for example, you kept asking for it to be postponed

  • it’s no longer possible to have a fair hearing in the case - for example, if you’re so ill you’re not likely to be able to give evidence in the foreseeable future

The tribunal must give you the chance to say why they shouldn’t strike out your case before making an order.

If you’re asked to pay a deposit

If the employment judge doesn’t think you’re likely to win your case or part of it, they’ll ask you to pay a deposit of up to £1,000. You’ll have to pay that if you want to continue with your case or that part of it. 

You’ll get the deposit back if you win on the issue for which you’ve had to pay a deposit. 

Check what happens after a preliminary hearing

The tribunal will send you:

  • a summary of the discussion

  • any case management orders the tribunal made

  • a summary of the legal issues you’ll need to prove in your case

  • a copy of any judgment the tribunal has made - for example that you’re an employee

If you’re offered judicial mediation

Mediation is a way of settling your dispute by agreement. In judicial mediation, an employment judge will try to help you and your employer reach an agreement. This will avoid the stress, cost and risk of a tribunal hearing. 

You might be offered judicial mediation if your case is more complex and the hearing will take 3 days or more. The tribunal is more likely to offer judicial mediation if you’re still working for your employer. 

You don’t have to accept the offer of judicial mediation. If you and your employer agree to mediation, the tribunal will give you both a date for mediation. 

If you have a legal representative, they’ll go with you. If you don’t have a representative, you can be accompanied by a friend or relative. If you’re bringing someone with you, let your employer and the tribunal know.

If the mediation is in person, you don’t need to be in the same room as your employer. If you don’t want to be, tell the tribunal clerk when you arrive at the tribunal. The judge will talk to each side separately and only bring you together if you agree.  

If the mediation is online, the tribunal will explain what you need to do. 

The judge will try to understand what each of you wants and help you and your employer reach an agreement so you don’t need to go to a tribunal. The judge might say if they think what you want is unrealistic. 

Before the mediation, think about what you want - like the minimum financial compensation you would accept. You might also want to ask for things a tribunal can’t order like:

  • extra support or training if you’re still working for your employer

  • an apology

  • an agreed reference

You should have the details of your Acas conciliation officer with you. If you reach an agreement, you can contact them to have your agreement made into a binding legal document called a ‘COT3’. You can find out more about settling a claim

If you can’t reach an agreement, your case will go on to a tribunal hearing.

Mediation is confidential. Nothing you or your employer say in mediation can be used in a hearing. A different judge will decide your case at the final hearing.

If you’re offered a judicial assessment

In a judicial assessment the judge will look at each side’s statements and give a view of the claim and how much compensation you could get. This could be different to what you actually get at the final hearing.

You or your employer can ask for a judicial assessment but only if your case involves a preliminary hearing. Both you and your employer have to agree to the judicial assessment.

You should take notes of what the judge says as you won’t get any document from them saying why they made their assessment. The notes will help if you need further advice on your case. You can check for organisations that can give you further advice.

You don’t have to agree with the judge’s assessment - if you don’t, the case will continue to a hearing. The assessment is confidential and nothing you or your employer say can be used in a hearing. The judge who makes the assessment won’t be involved in the hearing.

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