Most Employment Tribunal claims do not go straight from the ET1 to a full merits hearing. Between the two, there is usually a case management process, a series of steps that prepare the case for hearing and give both sides the opportunity to set out their positions, exchange documents, and agree what is in dispute.
This page explains what to expect from case management, what orders mean and how to comply with them, and how to keep your case on track.
The ET3: your employer’s response
Once your ET1 is submitted, the Tribunal sends it to your employer, who has 28 days to submit their response on an ET3 form.
The ET3 sets out your employer’s position: whether they accept or deny your claims, and why. Read it carefully when it arrives. It will tell you what is disputed, what your employer’s defence is, and what evidence they are likely to rely on.
Your employer may also make a claim that some or all of your claims should be struck out – dismissed without a full hearing – on the basis that they have no reasonable prospect of success. If this happens, it will usually be addressed at a preliminary hearing.
Preliminary hearings
Many cases involve one or more preliminary hearings before the final hearing. These are shorter hearings, usually one to two hours, that deal with procedural and legal issues.
A preliminary hearing may be convened to:
- Issue case management orders – setting out the steps both parties must take before the final hearing
- Decide contested legal questions, such as whether you meet the definition of disability under the Equality Act, or whether your claims are in time
- Consider applications to strike out claims or responses
- Determine whether a deposit order should be made (see below)
Preliminary hearings are often held by video or phone. You will receive a notice setting out the date, time, and format.
Case management orders
Whether at a preliminary hearing or on paper, the Tribunal will issue case management orders that govern the steps both parties must take to prepare the case. Common orders include:
Exchange of documents / disclosure Both parties are required to disclose documents that are relevant to the issues in the case. You will usually be required to prepare a list of documents you hold, and to provide copies of the documents themselves. Your employer must do the same.
Disclosure is one of the most important stages of a Tribunal case. Documents you obtain through your employer’s disclosure – internal emails, management notes, HR correspondence – can be crucial evidence. Conversely, failing to disclose documents you hold can seriously damage your credibility.
Witness statements Both parties will be ordered to exchange written witness statements on a set date. Your witness statement is your main evidence at the final hearing. It replaces oral examination-in-chief – you will not usually be asked to tell your story from scratch in the hearing room; the Tribunal will read your statement, and you will then be cross-examined on it.
Write your witness statement carefully, in your own words, and in chronological order. It should address each issue in the case – your disability, how it affects you, what happened, what you asked for, what your employer did or failed to do, and the impact on you. Stick to what you know personally. If you are relying on a document, refer to it by its page number in the bundle (see below).
Start writing your witness statement as soon as possible, you can add to it or edit it later, but getting the details down closer to the events rather than waiting to be ordered to, will mean things are fresher in your mind.
The hearing bundle The hearing bundle is the set of documents that will be before the Tribunal at the final hearing. It is usually compiled jointly, with both parties agreeing what to include. The bundle is indexed and paginated, and all references in witness statements and submissions should be to the bundle page numbers.
You are entitled to suggest documents for inclusion. If your employer refuses to include a document you consider relevant, you can raise this with the Tribunal.
Scott Schedule In some cases – particularly those involving a series of individual acts of discrimination – the Tribunal may order the claimant to prepare a Scott Schedule. This is a table setting out each alleged act, the date, what happened, and the legal basis for the claim. It helps the Tribunal manage a complex case and ensures both parties know exactly what is in dispute.
Deposit orders
If the Tribunal considers that one of your claims has little reasonable prospect of success, it may make a deposit order, requiring you to pay a sum (up to £1,000 per claim) as a condition of continuing. If you do not pay, the relevant claim is struck out.
A deposit order does not mean your claim has been dismissed, and it does not mean it will fail. It is the Tribunal’s way of flagging that the claim faces an uphill struggle. You can still proceed.
If you receive a deposit order, think carefully about the affected claim before deciding how to respond. Getting advice at this stage is important.
Compliance with orders
Tribunal orders have deadlines. Missing a deadline can result in your claim – or the relevant part of it – being struck out, or in costs being awarded against you.
If you cannot comply with an order by the deadline, contact the Tribunal as soon as possible and apply for an extension of time. Do not simply miss the deadline without explanation.
If you need more time because of your disability – for example, because a condition affects your ability to process documents or prepare written materials – you can ask the Tribunal for adjustments to the process.
Adjustments at the Tribunal
You are entitled to ask the Tribunal for adjustments to make the process accessible to you. This might include:
- Additional time to comply with orders
- Breaks during hearings
- Permission to give evidence by video link rather than in person
- A support worker or BSL interpreter in the hearing room
- Documents provided in accessible formats
- A ground floor or accessible hearing room
Put your requests in writing to the Tribunal as early as possible. Most adjustments are readily granted.
The final hearing
At the end of the case management process, your case will be listed for a final merits hearing. This is where the Tribunal hears the evidence – cross-examination of witnesses – and the legal arguments, and makes its judgment.
Most disability discrimination final hearings last between one and five days, depending on complexity. You will usually hear the judgment at the end of the hearing or, in more complex cases, in writing some weeks later.
Remedy is sometimes dealt with at the same hearing, but the Tribunal may list a separate remedy hearing after judgment if liability is found.
Representing yourself
Many claimants represent themselves, this is called being a litigant in person. The Tribunal is experienced in managing cases involving litigants in person and will, to some extent, make allowances.
That said, Tribunal proceedings involve formal rules of evidence and procedure that are genuinely complex. Having representation, from a trade union representative, a McKenzie Friend, or a qualified employment lawyer, makes a significant difference in most cases.
This page provides legal information, not legal advice. It reflects the law in England, Scotland, and Wales.