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A Stricter Approach to Pleadings and Amendments in the Employment Tribunal?

Reproduced from Practical Law with the permission of the publishers. For further information visit www.practicallaw.com or call 020 7542 6664.

In a regular feature, A Practical View from Tribunal, Craig Rajgopaul shares practical guidance from his recent experiences in the employment tribunal.

Many of those who have spent years litigating in the employment tribunals will be as familiar as I am with complaints from clients that the tribunals are “kangaroo courts”. This article is not the forum to dispute (or confirm) that generalised complaint. However, whether or not you have heard (or made) such complaints, it is likely that you will have experienced a difference of approach by disparate employment judges as to what claimants and respondents are required to plead in their ET1s and ET3s, and the issue of what is required by a party to amend their case.

My experience, assisted by two recent (and not yet very well
known) decisions of the EAT, suggests that many employment judges are now
taking a stricter (and some would say more principled) approach to the issue of
what claims a claimant is entitled to advance, and when an amendment is required
(or should be permitted), particularly where the party is legally represented.
This has important ramifications for those pleading cases, and those seeking (or
seeking to resist) amendments.

Recent guidance from the EAT

In Chandok v Tirkey [2015] IRLR 195 (which has been reported
in relation to the different issue of “caste” discrimination), the employment
judge decided part of the case before him by reference to what was said in a witness
statement rather than the pleading. Commenting on that, the President of the
EAT, Mr Justice Langstaff, firmly put to bed the heresy that parties are at
liberty simply to raise whatever issue they wish to raise at any time:

“The claim, as set out in the ET1, is not something just to
set the ball rolling, as an initial document necessary to comply with time
limits but which is otherwise free to be augmented by whatever the parties choose
to add or subtract merely upon their say so … I readily accept that tribunals
should provide straightforward, accessible and readily understandable fora in
which disputes can be resolved speedily, effectively and with a minimum of
complication … However, all that said the starting point is that the parties
must set out the essence of their respective cases on paper in respectively the
ET1 and the answer to it … In summary, a system of justice involves more than
allowing parties at any time to raise the case which best seems to suite the
moment from their perspective … That is why there is a system of claim and response,
and why an employment tribunal should take very great care not to be diverted
into thinking that the essential case is to be found elsewhere than in the
pleadings.”

In Remploy Ltd v Abbott and others UKEAT/0405/14, handed
down in late April this year, the EAT, citing Chandhok, went a step further,
when allowing an appeal against a tribunal’s decision to permit amendment to
claims which had been professionally drafted by experienced solicitors and
counsel. The EAT confirmed that, in deciding whether or not to allow an
amendment to a claim, employment judges must consider issues such as the reason
for delay, and the impact that the amendment is likely to have on case management
and preparation for hearings, in light of the prejudice to the parties.
Critically, the EAT stressed that: “It is essential before allowing an
amendment that it must be properly formulated, sufficiently particularised, so
the respondent can make submissions and know the case it is required to meet.

Without a properly particularised application for an amendment, the EAT held,
an employment judge is “simply not in a position to consider the effect of the
proposed amendments
.”

The impact of these decisions on case management

These decisions will be music to the ears of those who have
been faced with employment judges willing to allow claims to proceed without sufficient
particularisation, or allow amendments – even in complex claims – without requiring
the party seeking an amendment to properly particularise their case (for
example what provision, criterion or practice is relied upon, or what the
employer’s case on objective justification is). An absence of such particularisation
often makes it extremely difficult, if not impossible, to properly comply with a
party’s disclosure obligations, or prepare witness statements and the case for
trial.

I have found that taking these two cases along to case management
hearings (and even final hearings) is extremely helpful in persuading employment
judges to refuse applications for amendment – even those whose initial reaction
is to say that this is the employment tribunal, and requiring an amendment is
overly formal and unnecessary.

I have also found that employment judges are
generally becoming stricter in requiring parties to properly plead and
particularise their claims. By way of example, holiday pay claims have historically
been badly pleaded, and particularisation largely ignored by both parties and
left until the day of the hearing. However, the recent spate of holiday pay
claims in light of Bear Scotland Ltd and others v Fulton and others UKEAT/0047/13 and Lock and others v British Gas Trading Ltd and another ET/1900503/12 has resulted in many employment judges ordering claimants to
particularise specific details such as the precise amount claimed, in respect of
which dates, and even which holidays are said to amount to statutory holiday
under regulation 13 of the Working Time Regulations, and which are not. That,
in turn, appears to have impacted on the willingness of many employment judges
to order specificity in respect of other claims.

What that means for parties and their representatives

All this means that parties (and particularly their representatives):

  • Need very carefully to consider and plead out the claims
    that they are seeking to bring, and the basis for such claims in the ET1 (and,
    in respect of defences and counterclaims, in the ET3). Failure to do so may
    well lead to a party not being permitted to advance certain claims or parts of
    certain claims.
  • Need to ensure that any application for an amendment: 
    – Is
    made as soon as possible, and the reasons for the delay and the point not being
    included in the original pleading carefully explained; and 
    – Is fully and
    clearly particularised, failing which, the application is likely to be refused.
  • Should, where seeking to limit the other side’s claim or
    have an application for an amendment refused, refer the tribunal to the above
    cases (which in my experience many employment judges are not yet familiar
    with).
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