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Making Applications in Writing to an Employment Tribunal

Andrew Clarke QC considers how best to make (and to resist) applications to Employment Tribunals for case management orders.

Scope

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.

Legal principles

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.

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