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Employment Tribunal Pleadings: Just the Facts

22.09.20

Employment Tribunal Pleadings: Just the Facts

Nicholas Siddall QC analyses the recent decision of the EAT (HHJ Tucker) in C-v-D [2020] UKEAT/0132/19 and the comments there made as regards the correct approach to Employment Tribunal pleadings.

A            The Issue

It is an oft repeated mantra that the Employment Tribunal is an informal dispute resolution forum and that it eschews formality. The experience of practitioners may mirror that of the writer in that this mantra is becoming less accurate with each Presidential practice direction issued.

A particular frustration of practitioners is the need to dissect lengthy pleadings which are more akin to witness statements in order to seek to extract the factual claims that the Claimant wishes to advance and the legal manner in which the same are being advanced.

The need for such an approach was in part stimulated by Court of Appeal decisions such as Chapman-v-Simon [1994] IRLR 124 and Ahuja-v-Inghams [2002] ICR 1485 where the there claimants lost their claims on the basis that they sought to advance allegations of discrimination which had not been advanced in their ET1s. The effect of the same has often been to lead to an ‘inclusive’ and ‘safety first’ approach on the part of claimants and their representatives.

B            The Purpose of Pleadings

The purpose of pleadings in the Employment Tribunal was helpfully addressed by the former President Langstaff J in Chandhok-v-Tirkey [2015] ICR 527.

[17] ….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. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a “claim” or a “case” is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendments; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in the light of the identification resolving, the central issues in dispute.

[18] In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. 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.

C            The Issue in C v D

The appeal arose from an application to amend and the reasoning of the EAT in that regard breaks no materially new ground. However the judgment is notable for the EAT seeking to encourage a general shift in the approach of pleading claims before Employment Tribunals.

The EAT made the following observations as regards the ET1

whilst [it] also set out a lengthy and detailed narrative of alleged events, [it] did not set out clearly which facts related to which protected characteristic, or the particular type of discrimination she asserted had occurred, or, the statutory provisions relied upon in respect of those factual allegations.

The EAT recognised the reason for this approach may be as follows:

A narrative style of Claim Form and Response appears to now be more the norm than the exception. I can understand where the temptation for adopting it has come from: a fear that a relevant fact might not be included and fear that a witness might be challenged in a hearing because a detail was not included within the claim.

However the EAT set out in some detail the case management problems which arose as a result of the manner in which the ET1 had been pleaded up to and including the issues in determining the application to amend which led to the appeal.

D            EAT Guidance

HHJ Tucker made the following points:

  • The wording of the claim was unclear and thus it was problematic to discern if e.g. s13 or 15 discrimination was being advanced;
  • A brief statement of facts was needed simply to inform the other party what it was said they had done which was unlawful and why;
  • An ET1 is not a statement;
  • The purpose of an ET1 is “to distil the relevant factual matters to their essential or key component parts”;
  • Such an approach to pleading may take longer than a narrative style but it is time well spent;
  • To do otherwise increases time, cost and the likely delay of the hearing as it renders case management more difficult;
  • The document can state that it only addresses key facts to avoid cross-examination as to alleged omissions from the same.

The points were effectively summarised as follows:

“I do not encourage parties, particularly lawyers, to engage in that type of ‘narrative’ pleading. I would encourage legal representatives, in particular, to adopt a more succinct and clear drafting style. Whilst I do not suggest that the employment tribunal is a forum in which meticulous or unnecessarily pedantic pleading points should be raised, I do consider that, increasingly, there is a need to refocus on the purpose of a claim form, a formal document which initiates legal proceedings.

E            What about Litigants in Person?

The EAT recognised the different considerations which apply in this regard but maintained that the above points still amounted to good guidance:

Different considerations obviously apply where parties represent themselves and the documents are prepared by people who are not lawyers. However, the basic principle remains good: the Claim form should set out what the claim is and a brief summary of the facts relevant to each particular claim.”

F            Conclusion

The comments of the EAT are useful and salutary. It is hoped that the same usher in a new era of succinct and focussed pleading in the Employment Tribunal. It is perhaps unlikely that this shall occur unless Employment Tribunals commence robust case management of verbose claims and it may be felt that the above decision is a useful tool in seeking to urge the same on Employment Tribunals at case management hearings.

Nicholas Siddall QC is a member of Littleton’s employment team and accepts instructions in all facets of Employment Tribunal litigation.

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