Top ten tips for preliminary hearings on disability

24th September, 2019

Preliminary hearings on the issue of disability can be problematic. However, when disability discrimination is the only claim levied, an effective approach at a Preliminary Hearing can result in the claim being dismissed in its entirety at an early stage. Laura Kaye gives her top ten tips for getting the best results from preliminary hearings on disability...

  1. Forewarned is forearmed – where possible obtain comprehensive instructions from the business prior to the Preliminary Hearing. This ideally should have already been covered in the ET3 and include: knowledge (at various times and for which conditions), adjustments requested and secured.  Such groundwork at an early stage likely to secure savings (time, expense and resources) as the case progresses.
  2. Be specific – whether it's a concession or denial, the content of the ET3 or position on disability needs to be specific. What conditions are conceded, denied and why? Is knowledge denied for the full term or a specified term and why?
  3. The value of the Case Management Order – ensure case management directions on disability impact statements and disclosure are clear, particularly when Claimant is unrepresented. By way of example, the minute of the Order should set out precisely the issues a disability statement should address. If there is a breach, an application to the Tribunal for an Unless Order may be appropriate.
  4. Do we deal now, or later? – if a finding on disability would bring about the end of a claim or substantially reduce it, the Tribunal has a greater incentive to order a Preliminary Hearing. However, given the current pressure on resources, and in cases with live time limit issues or a pleaded knowledge defence, expect reluctance. If the client wants it, brief Counsel or prepare submissions for the case management hearing. Consider factors such as; the claims, reduction in facts/documentation required, the impact on time limits for the final hearing, the number of witnesses required. Also remember points 1 and 2 above, if the Tribunal considers on the strength of the pleading there may be a risk of an unfavourable finding on disability, this could tip the balance in your favour. 
  5. Advantage Respondent? – Respondents should not assume the absence of a disability statement (or indeed an inadequate statement) is an advantage. More often than not, a Tribunal will grant leave for evidence to be taken in chief. When new matters which were not anticipated arise, it can be much harder, if not impossible for Respondents to tackle disability properly. Be pro-active, remind the Claimant of their obligations under the Orders (see point 3 above) and if appropriate, refer the matter back to the Tribunal.
  6. Respondent witness evidence – In the ordinary course of business, witness evidence from the Respondent is not necessary. However, in cases of reactive depression and where appropriate, oral evidence on how the Claimant acted during the course of their employment may be useful to assess substantial adverse effect. 
  7. Other sources of evidence – a Respondent may find evidential material on social media platforms (Facebook, LinkedIn, Twitter, Instagram relevant to day to day activities and effect of conditions. It may also provide a useful quality check on the credibility of the Claimant's evidence which in turn may inform the strategy a Respondent adopts (see point 11 below). 
  8. Providing bundles – a paginated indexed bundle will always be welcomed by the Tribunal. Be selective and ensure the contents are proportionate. The Tribunal only requires relevant medical records not an entire medical history. 
  9. The impact of medication – the key consideration for the Tribunal is: what would the Claimant's condition be like without it? Any argument levied should retain this focus. If a Claimant’s condition would be worse without medication, you may need to review your position. Also do not forget to consider side effects which can cause additional symptoms to that of the primary disability which exacerbates an adverse effect.  
  10. Question time – cross-examination on disability requires careful consideration. Asking questions to advance your weaker points runs the risk of a Claimant being able to give information to strengthen their case. Remember, the bar for disability is quite low. Keep your questions tight and closed, focusing on areas with more mileage.
  11. Pick your battles – the definition of disability can be broken down into sections. If your position on "substantial" is weak, do not push it. Focus on the strengths of your argument. Appropriate and reasonable concessions will go far with the Tribunal's good will and helps to ensure your other arguments are conveyed with the right level of force.

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