Preliminary Hearings – Public or Private?

Whilst full hearings in the Employment Tribunal are usually held in public, the same cannot be said of preliminary hearings. This may displease Claimants who are keen for their case against the Respondent to receive publicity, no matter what stage it is at. Respondents, on the other hand, may be grateful that the complaints against them are being kept out of the public eye for as long as possible.

There are, however, certain circumstances in which preliminary hearings can and should be held in public. This is so pursuant to Rules 53 and 56 of the Employment Tribunal Rules of Procedure 2013 (“the 2013 Rules”). Those rules are as follows:

 Rule 53 of the 2013 Rules

“53. (1)  A preliminary hearing is a hearing at which the Tribunal may do one or more of the following:
(a)  conduct a preliminary consideration of the claim with the parties and make a case management order (including an order relating to the conduct of the final hearing);
(b)  determine any preliminary issue;
(c)  consider whether a claim or response, or any part, should be struck out under rule 37;
(d)  make a deposit order under rule 39;
(e)  explore the possibility of settlement or alternative dispute resolution (including judicial mediation).

(2)  There may be more than one preliminary hearing in any case.

(3)  “Preliminary issue” means, as regards any complaint, any substantive issue which may determine liability (for example, an issue as to jurisdiction or as to whether an employee was dismissed).”

Rule 56 of the 2013 Rules

“56. Preliminary hearings shall be conducted in private, except that where the hearing involves a determination under rule 53(1)(b) or (c), any part of the hearing relating to such a determination shall be in public (subject to rules 50 and 94) and the Tribunal may direct that the entirety of the hearing be in public.”

In general, preliminary hearings fall into two categories: (1) those dealing with case management issues, and (2) those dealing with preliminary issues. In line with Rule 53(3) of the 2013 Rules, the latter is defined as “any substantive issue which may determine liability.” Preliminary hearings dealing with issues of this type should be heard in public; conversely, case management preliminary hearings must be closed and private (Rule 56, 2013 Rules). Where a hearing involves both types of issues, the substantive issues will be addressed in public, but it is at the discretion of the judge whether the determination of the case management issues will take place on the same occasion and in public, or whether that part of the hearing is held in private (Rule 56, 2013 rules).

Guidance on the meaning of “any substantive issue which may determine liability” was recently given in Queensgate Investments LLP and others v Millet UKEAT/0256/20, a judgment handed down on 15 January 2021.

There the EAT held that preliminary hearings to determine applications for interim relief fell within the Rule 53(3) definition and must be held in public, pursuant to Rule 56, unless an order restricting publicity is made under Rule 50. This was so despite the fact that it was accepted that an application for interim relief was not a final determination of any of the liability issues (para. 20). Rather, the definition was held to include interim relief applications because they “[determine] civil rights and obligations” (para. 63).

In his judgment, HHJ Tayler set out how the question of whether a preliminary hearing should be held in public or in private should be approached.

First, it should be considered whether the relevant matter to be dealt with at the preliminary hearing is a “complaint” for the purposes of Rule 1(1) of the 2013 Rules (para. 26). This is defined as “anything that is referred to as a claim, complaint, reference, application or appeal in any enactment which confers jurisdiction on the Tribunal.” This is then broken down into two stages: (1) whether there is an application; and (2) whether jurisdiction is conferred on the Tribunal.

In addressing the application issue, HHJ Tayler said the following:

“28. …I accept that the word “application” in the definition of “complaint” in Rule 1(1) ET Rules 2013 is not apt to cover applications in the course of case management; such as applications for further information, disclosure or the like, I consider that an application for interim relief is a substantive application, rather than a mere application in the course of case management. It is an application that, if granted, results in an order for continuation of the claimant’s contract of employment, with the consequence of a continued entitlement to payment to trial, that will not be undone if the claim of unfair dismissal is unsuccessful.”

Although addressing a different question, this is largely in line with the separation between case management and substantive issues that we see in Rule 53 of the 2013 Rules.

The second issue is whether the relevant matter was referred to as such in a provision that “confers jurisdiction on the Tribunal.” In the Queensgate case, HHJ Tayler interpreted section 128 of the Employment Rights Act 1996 as conferring a jurisdiction on the tribunal to grant interim relief (para. 30).

Second, it has to be decided whether the relevant matter involved the determination of a “preliminary issue.” On this question, HHJ Tayler said:

“32. … I consider that in determining the application for interim relief the Employment Tribunal does determine a substantive issue, whether it is likely that the claim will be successful at final hearing, that determines the liability for interim relief, which if granted results in the continuation of the contract of employment, and the obligation to pay wages. While I do not consider that the determination of an application for further information or disclosure involves the determination of a substantive issue that could determine liability, the position is different in the case of interim relief because of the permanent nature of the remedy should the application be granted. So while I agree with the Respondents that determination of the application for interim relief cannot involve any determination of liability in respect of the underlying complaint of unfair dismissal, I consider it does determine liability in respect of the right, or otherwise, to interim relief.”

What can be taken from this is that a preliminary application need not be determinative of the complaint as a whole in order to fall under Rule 53(1)(b) but can be determinative of underlying rights and obligations.

 Conclusion

 Following the judgment in Queensgate, parties in the Employment Tribunal now have a clearer picture of when a preliminary hearing will be held in public. Those unsure can follow the guidance given by HHJ Tayler when assessing whether the matter to be addressed in a given preliminary hearing will mean that it should be heard in private or in public. Whilst this will need to be determined on a case-by-case basis, the overarching principle is that preliminary hearings dealing with matters relating to jurisdiction (such as worker status points) or liability (such as the interim relief application seen in Queensgate) will be held in public. Conversely, applications relating to case management issues, such as disclosure or further information, will be heard in private.