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  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).