In this section, the focus is on the likely stages through which your claim may proceed. It is likely to take some time before your claim is finally decided and during that time there may be a number of different types of hearings. You will also probably be engaged in correspondence with the Respondent seeking documentation, for example, or providing further details about your claim. This section explains the various type of hearing you may encounter and attempts to set out the general path that your claim may follow until it is finally determined.
What if my claim is not accepted?
Your claim may not be accepted if:
- the Tribunal has no power to decide your claim because it is not within its jurisdiction, or
- all relevant information has not been included.
Receiving the Respondent´s response
Your claim is communicated to the Respondent and it must send a response within 28 days of the date on which it was sent your claim by the Office of the Industrial Tribunal and the Fair Employment Tribinal (OITFET). The Respondent can seek an extension of time within which to make its response but that application has to be made to the Tribunal within the 28 day period. The Respondent makes it response by way of a form called an ‘ET3’.
What written questions can I ask of the Respondent? - Statutory questionnaire procedure
Within 21 days of the receipt of your claim at the OITFET you must have issued your statutory questionnaire, if you haven’t already done so. This is a form, addressed to the Respondent, asking questions of it about the treatment that you endured. The answers that the Respondent gives are admissible in evidence at a hearing before the Tribunal. Perhaps more importantly, where a Respondent doesn’t answer a question, or provides an evasive reply, a Tribunal can use that fact to help it conclude that the Respondent has discriminated (See What must I prove? - The burden and standard of proof).
You can, if you wish, issue the questionnaire before you make the claim, provided it is sent within three months of the discriminatory act. However, the time limit for making the discrimination claim is not extended because you are awaiting a reply to the questionnaire. The best advice, therefore, is to issue your ET1 in the meantime, while you await the Respondent’s answers.
More advice and information on the Questionnaire Procedure is provided by clicking this link.
Different types of hearings
The following paragraphs explain the various hearings at which you may have to appear. When appearing at any of these hearings you should be clear about the purpose of them, and should have prepared in advance. If you are in any doubt about the purpose of a particular hearing you should seek the help of the staff in the OITFET. If you are still unclear about what will happen in a particular hearing you can always ask the chairman to clarify these matters on the day of the hearing.
The hearings explained here are:
Preparing the case for hearing - Case management discussion
A Case Management Discussion (CMD) is a very important stage in the processing of a claim and is held to supervise the administrative progress of claims. The purpose is to establish what steps need to be taken before the claim can be listed for hearing and to encourage the parties to set out in writing the legal and factual issues that are in dispute between them and to timetable a case for hearing.
It is important to understand that no decisions are made about the legal or factual issues in dispute between the parties at these discussions. Thus, they do not involve making any finding about whether the claim is justified or not, for example. They focus instead on trying to move the process along.
A Tribunal can make a wide range of orders that relate to the management of the proceedings in a CMD including, for example,
- whether any of the parties should provide additional information, or
- whether there should be discovery of documents (i.e. providing relevant documents) by any persons in Northern Ireland, or
- whether an order compelling the attendance of a witness is required, or
- whether a Pre-Hearing Review is required about some aspect of the case.
In short, any matters touching on the running of the case, as opposed to deciding the legal and factual matters in dispute between you and the Respondent, can be dealt with in a CMD.
Before a CMD takes place you should give careful consideration to your case. The Tribunal will expect you to have prepared for it and sends out detailed information relating to the matters that will be discussed. (You can use the document sent by the Tribunal as a template for the specific issues you want addressed. The document you draw up will be referred to as your ‘Statement of Facts and Issues’
The Respondent will also draw up its Statement of Facts and Issues and by the conclusion of the CMD the Tribunal will have used these Statements to produce a final version. This final Statement of Facts and Issues effectively sets the parameters of the final hearing. The Tribunal will produce a Record of Proceedings of the Case Management Discussion to which the final Statement of Facts and Issues will be appended.
As one of the roles of a CMD is to narrow the factual and legal issues in dispute between the parties you should begin by setting out what you consider to be the facts you need to prove to support your claim. Then set out the legal matters that you want the Tribunal to rule on. These might include the following:
- Was I less favourably treated, on the grounds of my sex, religious belief and/or political opinion, race, age, sexual orientation, disability, or for a reason related to my disability, than others to whom that reason did not apply?
- If so, was that treatment justified in law?
- Did the Respondent make reasonable adjustments to the workplace including my job description/job specification to accommodate me?
- Did the Respondent apply a provision, criterion or practice which placed me at a particular disadvantage compared to persons who are not disabled, not of the same sex, race, religious belief and/or political opinion?
- Was that the provision, criterion or practice a proportionate means of achieving a legitimate aim?
- Was I the subject of harassment in the workplace?
- Was I victimised by the Respondent for my involvement in any previous discrimination claim or potential claim?
Consider what further documents, or additional information, you need that you have not been given to date or that, for one reason or another, you have not got. If the Respondent does not give these to you voluntarily then you will need an appropriate order from the Tribunal and one can be granted in a CMD. (It is expected that normally by the time the CMD takes place that the parties will have gathered the necessary information and documents from one another.)
Consider also what witnesses you will need and the time scale for preparing any witness statements.
The Tribunal Chairman may also set dates for the hearing. Try also to have with you dates on which your witnesses would be available or, more particularly, dates on which they definitely cannot attend at the Tribunal. (Consider whether some of the witnesses are based outside Northern Ireland or whether they have any special needs, such as the need for interpretation, for example.)
Dates for the submission of bundles of documents ( i.e. the documents which you wish to refer to the Tribunal at the hearing of your case) to the Tribunal will also be set by the Chairman if the hearing dates are set. Either you or the Respondent will take responsibility for preparing the bundles and this is a matter that can be agreed at the CMD.
Lastly, the Chairman might also direct that you prepare a Schedule of Loss
(i.e. details of your financial loss) for delivery to the Respondent for a certain date. The Respondent will be anxious to see this because they will want to know the ‘value of the case’ so that they can consider what offer, if any, to make to settle the claim (see The decision and remedies
for more information).
Deciding preliminary legal points - Pre-hearing review
A Pre-Hearing Review (PHR) is an interim hearings at which legal matters of an interim, or preliminary, nature are decided.
An example would be in a disability discrimination case where a Pre-Hearing Review might be held to decide if the Claimant was in fact a disabled person who was entitled to the protection of the legislation. Rather than set the matter up for a hearing of all the legal issues and factual arguments between the parties, the Chairman would probably insist on holding a PHR to decide the issue of whether the person was disabled or not. If she was not, then the case would proceed no further, but if she was then that issue would have been disposed of, and need not be revisited at the full hearing.
You can see how important this stage is in the processing of your claim. Ensure that you are properly prepared for it. In particular, in the example relied on here - i.e. disability discrimination - ensure that any expert medical evidence you need
is available for the Pre-Hearing Review. This might include commissioning reports from a range of medical or occupational health professionals.
Other matters commonly considered at a Pre-Hearing Review are:
- whether the claim had been made within time,
- and, if not, whether it is ‘just and equitable’ to consider extending the time limit to allow the claim to be accepted, or
- whether the claim should be amended to add a matter not in the original claim, or
- whether there has been a failure to comply with Orders of the Tribunal for Discovery or the production of additional information, for example, and if so whether some, or all, of the claim should be struck out.
In a Pre-Hearing Review a Chairman also has the power to order the Claimant to make a deposit if it is considered that the claim has little prospect of success. Failure to pay the deposit within 21 days will result in the claim being struck out. A Tribunal may also make an order for interim relief - i.e. for a short term remedy pending the full hearing – in a PHR.
As explained above, a Pre-Hearing Review can also decide to strike out some, or all, of the claim, bringing that part which is struck out to an end. This can only happen, however, where one of the parties has requested the Tribunal to make such an order or where the parties have failed to attend a pre-hearing review. Where a Tribunal is intending to make such an order it must first give notice to the parties that it intends to do so and give that party an opportunity of presenting reasons why the order should not be made. So, when you receive the notice of the PHR sought by the Respondent check it carefully to see exactly what orders are being sought. You will be required to respond orally – and with documentary evidence if available – to defeat the Respondent’s application. Where a Pre-Hearing Review is scheduled to deal with an application to have your claim, or part of it, struck out you should ensure that you are well prepared otherwise your claim may be over before it begins, so to speak.
Any written submissions that you intend to make at a Pre-Hearing Review must be with the OITFET 7 days before the hearing.
Proving you are ´disabled´ in a disability discrimination case
A particular word needs to be said about staging a PHR in a disability discrimination case to decide whether the Claimant is disabled. In order to benefit from the protection of the Disability Discrimination Act 1995, you must show that you are a person who fits the definition of a ‘disabled’ person as set out in the legislation.
This means that you must show the following:
- you have, or have had, a long-term impairment,
- that affects your ability to perform day-to-day activities
This issue would be dealt with in a Pre-Hearing Review if the Respondent does not accept that you are disabled. The Tribunal will hear evidence from the Claimant, and any experts that were relevant, as well as considering the documentary evidence produced by the Claimant relating to his or her impairment and then conclude whether or not the Claimant is disabled for the purposes of the claim.
The onus is on you to show that you do meet the definition of a disabled person and if you fail to show that in the Pre-Hearing Review designed for that purpose your disability discrimination claim will be dismissed. You must, therefore, gather the evidence that supports your claim to be disabled. Often this is of a documentary nature and involves medical notes and records or expert reports prepared by medical or occupational health professionals, for example. You should gather this information and make it available to the Respondent or you could write to your medical or other adviser
and authorise him or her to release the documents to the Respondent.
Making the documents available to the Respondent often avoids the need to have the matter decided by the Tribunal in a PHR because the fact of your disability is clear from the documentary evidence. In that case the Respondent simply accepts that you are ‘disabled’ for the purposes of the Disability Discrimination Act.
However, where it is not obvious, or the Respondent disputes either the expert evidence, or that you are in fact severely hampered by your impairment, then a Pre-Hearing Review will be needed and you must realise that it’s up to you to convince the Tribunal that you are disabled. You must be prepared at the hearing to prove that issue. This might involve instructing an expert to produce a report
and it might therefore cost you money. But, at the risk of overstating the point, the onus is on you and you have to meet that burden.
After all the preliminary steps have been negotiated, a (final) hearing to decide the principal legal and factual issues is held. This will be the hearing at which the Tribunal will finally decide whether to uphold your claim or not. The focus of this hearing will be on the Statement of Facts and Legal Issues - both terms are described in the Glossary
- finalised at the CMD
You are given advice on how to present your claim at one of these hearings in How to present your case.
Challenging a Tribunal´s decision - Review hearing
A Review Hearing is in effect a form of appeal against a Tribunal’s decision on some aspect of the case, except that it is the same Tribunal that made the decision that reviews the matter.
Either party can request a Tribunal to review an aspect of any decision it makes in the course of dealing with a case. Exceptionally, the Tribunal itself can initiate a review.
This could be a request to reconsider:
- a decision not to accept a claim (or part of it), or
- a final decision in the case about the claim, or
- some particular matter about costs, or
- that it might be a request from a Respondent arising from the Tribunal’s refusal to accept its response because it is out of time.
However, the review must be based on one of the following grounds:
- the decision was made as a result of administrative error;
- the party did not receive notice of the hearing at which the decision was made;
- the decision was made in the absence of a party;
- new evidence has come to light since the decision which could not have reasonably have been known of or foreseen at that time;
- the interests of justice require such a review.
You will note the decision not to accept a claim or a response can be reviewed on the basis on the first and fifth grounds only.
This means that the discussion of whether the review should be allowed will be focused on one or more of these grounds and will not be a wide-ranging one. If it is the Respondent requesting the review, you should examine its written request to see what grounds it intends to rely on and you should be prepared to respond orally to its submissions at the Review Hearing.
If you are seeking the review, your written request must indicate on which ground(s) you intend to rely and you must be prepared to make oral submissions in support of that application. To initiate such a review, the party that seeks it must write to the OITFET within 14 days of the date on which the decision they seek to challenge was sent to them. So, if part of Phillip’s claim is rejected – say because it doesn’t seem to disclose any discrimination - he can write to OITFET to request a Review Hearing and have the opportunity to convince the Tribunal to change its mind and accept that part of the claim.
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