Andrew Clarke QC considers how best to make (and to resist) applications to Employment Tribunals for case management orders.
This note considers how best to make (and to resist) applications to Employment Tribunals for case management orders. ETs have broad powers to make such orders following a written application where the other parties have been given the opportunity to make their own written observations on what is sought. I set out below some practical guidance on making and resisting such applications.
How to structure an application
Broadly speaking, any letter of application needs to say what order is sought, on what basis it is being sought and why it is being sought in writing at the particular point in time.
The Judge looking at the letter (and any response) will have the ET file. This will contain the ET1, the ET3 and all correspondence involving the ET as well as any Orders already made in the case and notes taken at any hearings. The documents are often held together by a treasury tag and a substantial and well used file is not always easy to work with.
A brief introduction to the case
The judge may well not have been involved with the case before. Hence, an application that helps the judge to get up to speed quickly is sensible. This will involve stating briefly what the case is about, what stage the case has reached, whether there have been relevant amendments to either the ET1 or the ET3 and whether there have been relevant case management orders made. Stating that there have been amendments, or orders, but that they are not presently relevant is likely to be equally helpful in identifying what the judge needs to read.
A reading list
If you think it would be helpful to focus the judge onto the relevant matters, suggest what needs to be read before the judge considers your application. In a case of complexity, especially one that has generated a lot of paper, it may be sensible to enclose a short clip of relevant documents (or relevant extracts from documents).
The Order being sought
Common sense suggests that you are likely to know the case better than the judge and you should better understand the precise order that you seek. You are, therefore, better placed to draft that order. Any judge is likely to be more receptive to an application which includes a carefully framed draft order than to one that leaves the drafting to the judge based on the party’s observations.
Why do you need the order?
The application needs to explain why you need the order you seek. That involves not only justifying the making of the order, but also explaining why it is being sought at this moment in time and by written application rather than at some past (or future) hearing. Generalised statements about helping with case preparation are unlikely to assist. Having set out the nature of the case and invited the judge to read relevant documents (or parts of them) it should be possible to explain precisely why particular information is needed, or why particular documents should be disclosed, or why a particular witness is important, but unwilling to attend voluntarily.
The judge will be familiar with general principles of law, so they can be dealt with succinctly. If you want to refer a judge to a particular case, or passage from Harvey, identify it and summarise why it is relevant. A brief quotation, or identification of relevant paragraphs, will be helpful. Again, enclosing a copy of a relevant case, or extract, may be sensible.
Clear structure with headings
A clearly structured letter, with the text divided up by headings, is easier to follow than a continuous narrative. It should enable a focussed reply to be given by the other parties and enable a judge to identify and resolve areas of dispute.
How to structure a response
Responding to a well presented application is straightforward. It is sensible to adopt the same structure, clearly identifying areas of dispute.
If the application is poorly structured, then the response should provide the structure which it lacks. The format will be the same as that which the application should have adopted.
If the order sought is too wide, but a narrower order would be acceptable, provide a draft.
If the application is considered too complex to be dealt with on paper, ask for an oral hearing offering potential dates (or dates to avoid). Consider whether a telephone hearing might be sufficient given that the parties’ positions have been set out on paper.
Responding to the response?
The ET will probably not be expecting one, so if one is to be sent make sure that it is sent quickly. It is also worthwhile informing the ET, by telephone, that a response is on its way. That should avoid a judge deciding on the application without seeing it.
Again, any such response should follow the structure adopted thus far and explain clearly what point(s) it is addressing.