In this conjoined appeal, the two claimants had lodged very lengthy ET1’s. The EJ directed that they condense them to one side of A4 paper only. The claimants appealed the order, objecting that this would require them to omit claims and other important information.

The EAT allowed the appeal. It was an error of law/perverse for an EJ to limit what there is in an ET1. If some paragraphs set out irrelevant matters or were embarrassing (in the legal sense) to plead to, there could be an application to strike out the offending paragraphs.  At the end of a hearing, a question of costs may arise if the ET1 (or 3) is unreasonably prolix leading to waste of costs.  The appropriate way of dealing with prolix pleadings was by identifying issues at a case management discussion.

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Appeal Nos. UKEAT/0139/12/JOJ

UKEAT/0140/12/JOJ

UKEAT/0141/12/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 20 March 2012

Before

THE HONOURABLE MRS JUSTICE SLADE DBE (SITTING ALONE)

UKEAT/0139/12/JOJ

MR R P FAIRBANK (APPELLANT)

CARE MANAGEMENT GROUP (RESPONDENT)

UKEAT/0140/12/JOJ & UKEAT/0141/12/JOJ

MR R EVANS (APPELLANT)

SVENSKA HANDELSBANKEN AB (PUBL) (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For Mr R P Fairbank and Mr R Evans
MR DANIEL MATOVU (of Counsel)

Instructed by:
Martin Searle Solicitors
9 Marlborough Place
Brighton
East Sussex
BN1 1UB

For Care Management Group
No appearance or representation by or on behalf of the Respondent

For Svenska Handelbanken AB (Publ)
No appearance or representation by or on behalf of the Respondent

PRACTICE AND PROCEDURE

Application/claim

Case management

The ET1 in both cases was settled by the same firm of solicitors. The ET1 in one case ran to 27 pages. The other was also extremely long. An Employment Judge gave a direction in each case that the Claimant should reduce their ET1 to one side of A4 paper. The Appellants objected that this would require them to omit claims and other important material.

The Particulars of Claim seem to have been witness statements. Such a practice is not helpful and does not further the overriding objective. The ET Rules state what should be in an ET1. Parties need to specify the claims they are making: Chapman v Simon. Without being prescriptive, the essentials to be pleaded are likely to be: (1) the legal basis for the claim: unfair dismissal, direct race discrimination etc; (2) what the act or omission complained of was; (3) who carried out the act; (4) when the act or omission complained of occurred; (5) why complaint is made of the act/omission; (6) anything affecting remedy.

It is an error of law/perverse for an EJ to limit what there is in an ET1. If some paragraphs set out irrelevant matters or are embarrassing (in the legal sense) to plead to, there could be an application to strike out the offending paragraphs. At the end of a hearing question of costs may arise if the ET1 (or 3) is unreasonably prolix leading to waste of costs. The appropriate way of dealing with prolix pleadings is by identifying issues at a case management discussion (see Mummery LJ in Hendricks at para 53). The issues must not be over elaborate or numerous (Mummery LJ in St Christopher's Fellowship v Walters-Ennis [2012] EWCA Civ 921). Appeals allowed; directions given for CMDs.

1. These are two conjoined appeals from the orders of Employment Judges under Schedule 1, rule 10(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 that the Claimants in each case provide concise statements of their claims before the Employment Tribunal.

1. The orders to the Claimants in each case were in similar form, and in material part provide as follows:

"Your claim has been accepted. [...] The claim form in this case has been referred to an Employment Judge who noted that the claim has been described at length.

The Judge directs that the claimant provide the tribunal within 14 days of the date of this letter with a concise statement of the claims with a minimal statement of the supporting facts. Such statement should not exceed one side of A4 paper and should be comprehensive without reference to other documents.

The time for the Respondent to submit a response is extended until 28 days after such concise statement has been approved by the Judge and forwarded to the respondent."

1. In one of the cases, the Care Management case, the Respondent lodged a response before the concise statement had been provided. The orders were referred to the Regional Employment Judge, who responded to the Claimants' solicitors queries of the order on 9 February 2012, as follows:

"Thank you for your letters concerning orders made in these cases. I understand that the claimants have each been ordered or directed by a judge to provide details of their claim, specifically 'to provide a concise statement of his claims, with a minimal statement of the supporting facts'. Each objects and two have appealed the order.

The principal purpose of completing a claim form and delivering it to a tribunal is to begin a claim. It is important therefore that before a claim is presented a claimant should consider what contractual or statutory right s/he is relying on and how it is alleged that contractual or statutory right has been infringed by the respondent. It is stipulated by Rule 1(4)(e) Employment Tribunals Rules of Procedure 2004 that claimant's [sic] must provide details of the claim. It is therefore essential that a claimant provides all the required information that is relevant as, pursuant to the Rules, failing to do so may result in the claim being rejected.

It appears that there is a difference of opinion between you and the judges regarding what information is required at this stage. In each case, your client's claim(s) has/have been accepted. Clearly rejection of a complaint cannot be a legitimate concern in the cases you have referred to me.

Additionally, the claim form must serve the purpose of notifying the respondent that the claimant is complaining about an alleged breach of an employment right that falls within the tribunal's jurisdiction.

It is my view that 'details of the claim' as required by the Rules are not the same as the particulars of the claim. To provide details of the claim the claimant need only state what contractual or statutory right s/he is relying on and how it is alleged that the contractual or statutory right has been infringed by the respondent by providing a brief description of the treatment or conduct complained of. It is common and acceptable practice for claimants to send to the respondent to supplement the details of a claim with voluntary further particulars of claim sent to the Respondent and copied to the tribunal, where it is considered that this will assist the overriding objective. The claimants would not be at a disadvantage were such course to be adopted.

In the case of R Evans v Svenska Handelsbanken Ab(publ) 3104058/11 the claim form comprises of 27 pages and 69 paragraphs; in [another case which is not relevant to these appeals is referred to] and R Fairbank v Care Management Group 3104158/11 27 pages and 66 paragraphs. The claim forms are exceptionally lengthy because you have decided to include all of the particulars of each claim. I disagree with your premise that it would disadvantage your clients to provide 'details of the claim' within one side of A4, as ordered. The Tribunal has to manage thousands of cases a year and most claimants are able to provide a description of the events relevant to their claim, no more complex than the three cases above, confining themselves to one or two sides of A4. The overriding objective requires the parties to deal with cases in ways proportionate to the complexity of the case or the importance of the issues and to saving expense. I note that the Response in one of these cases comprises 11 pages and 54 paragraphs; likely prompted by the lengthy claim form.

The judges have a general duty to manage the cases, having regard to the overriding objective and may make orders that they consider appropriate. If you refuse to comply with an order of a judge they may make such orders in response as they deem appropriate. As the Regional Employment Judge, I do not have power to interfere with their discretion."

1. The grounds of appeal challenge the decisions of the Employment Judges in each case as perverse, incorrect and an improper exercise of discretion, contrary to the Rules of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 and to natural justice. I do not propose to set out the facts which form the basis of each claim. The letter from the Regional Employment Judge, which I have read out in full, sets out some material matters relating to each claim and the length of the claim forms.

1. Mr Matovu, for the Appellants, states that Employment Judges have no power to curtail a claim made in a claim form, and that this is what the orders in these two cases do. Employment Judges, it is said, can only adjudicate on claims presented to them, and that claimants would be at risk, if compelled to condense their claims into one side of A4 paper, of not presenting the claims which they wish to raise.

1. Mr Matovu recognises that these claim forms are long, but says that compliance with the Tribunal Judges' orders in condensing the claims would compel an unjustified curtailment of claims. He points out that sometimes it is the respondent's response to a claim form which is made at length.

1. Mr Matovu relies on the case of [Franco v Bowling & Co Solicitors]() UKEAT/0280/09/DM, in which the Employment Appeal Tribunal accepted submissions on behalf of the appellant that the Employment Judge in that case wrongly limited the nature of the claimant's case by putting a time limit on the complaints raised in the ET1. The Employment Appeal Tribunal held:

"The effect of the judge's order is, 'to limit' the claim 'to the last 24 months of her employment.'"

1. Mr Matovu also drew attention to the case of [McKinson v Hackney Community College and others]() UKEAT/0237/11/JOJ in which the Employment Appeal Tribunal held that an Employment Judge erred in limiting:

"[…] what would be considered at the final hearing to no more than six incidents of direct discrimination and no more than three incidents of victimisation."

The Employment Appeal Tribunal observed at paragraph 19 of their Judgment,

"The claim form on its face appears to encompass more than six incidents of direct discrimination and more than three incidents of victimisation [and continues] there is no power to require a Claimant in effect to self-select which of a number of complaints, all encompassed within the claim form, he will pursue at the final hearing."

1. In his skeleton argument, Mr Matovu also referred to the well-known authority of Chapman v Simon [1994] IRLR 124, 129 in which the Court of Appeal held that it is only claims which are raised in a claim form upon which an Employment Tribunal has jurisdiction to adjudicate. In reliance on those authorities, Mr Matovu contends that the orders made in this case, in effect, would curtail the basis of the Claimants' claims and limit the claims which they could bring before the Employment Tribunal.

1. When asked by me why it was that these Employment Tribunal claims were framed in the way that they were with, as the Regional Employment Judge pointed out, 27 pages and 69 paragraphs in one case, and 27 pages and 66 paragraphs in another case, Mr Matovu's response was that the solicitors found that framing claim forms in this way gives full material to respondents and may achieve a settlement of cases, and that would be in accordance with the overriding objective referred to in the Employment Tribunal Rules.

1. The requirements of what has to go into a claim form to an Employment Tribunal are set out in rule 1 of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure Regulations) 2004. The required information is that set out in rule 1(4): (a) each claimant's name; (b) each claimant's address; (c) the name of each person against whom the claim is made (the respondent); (d) each respondent's address; and (e) details of the claim.

1. In Chapman v Simon, Gibson LJ, at paragraph 42, held,

"Under section 54 of the 1976 act, the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made, and no other, that the Tribunal must consider and rule upon."

1. It is for a claimant to decide which claims he or she wishes to advance before an Employment Tribunal. It is not for this Employment Appeal Tribunal to be prescriptive as to how an Employment Tribunal claim is to be framed; that must depend on all the circumstances. For example, in a discrimination case it may be that there is an allegation that certain events show that there is a continuing act or there is reliance placed on past events by a claimant in order to invite a Tribunal to infer discrimination. However, the essentials to be inserted in a claim form may well be those which are referred to in the Regional Employment Judge's letter of 9 February 2012 in these cases: first the basis for the claims advanced in law (for example, unfair dismissal, discrimination); second, when the act complained of occurred; third, who carried out that act; fourth, what that act was; fifth, if relevant, why it is said that that act was carried out; and sixth, any matter affecting remedy.

1. In the lengthy statements submitted as claim forms in the cases on appeal there are sections summarising the legal basis of the claims, although that is done by reference back to other paragraphs in the statements. There are many paragraphs, in my judgment, which do not fulfil the purposes of an Employment Tribunal claim form. However, I am not going to dictate what should or should not be in those claim forms.

1. It is for a claimant to decide how to present their claim. If prolix claim forms are lodged or, as appears to have been in this case, a statement taken from a claimant is put in as a claim form, there could be consequences thereafter. First, faced with such claim forms, the task of an Employment Judge in giving case management directions is made all the more difficult. A respondent may have to consider and respond to a number of matters which may turn out to be irrelevant or peripheral to the claim.

1. At the conclusion of the hearing, an Employment Judge or an Employment Tribunal may consider that, irrespective of the outcome of the claims, the way that the claim has been conducted is unreasonable. This may lead to a costs order. If it was the purpose, as appears to have been the case in these appeals, that framing claims in this very lengthy matter was done to achieve a settlement, an Employment Judge or an Employment Tribunal may consider whether that is the appropriate mechanism for achieving that, or whether, as stated earlier in this Judgment, there should have been proper claim forms lodged and if the Claimant or advisors so wished voluntary service of the statement or other material in order to demonstrate the strength of their case.

1. Faced with claim forms such as in these cases, a Respondent could not be expected to respond to each factual allegation in what are, in effect, witness statements.

1. The appeals in these cases are allowed because, in my judgment, there was no power to make the orders appealed. It is for the Claimants to advance their claims as they see fit, which may lead, however, to the consequences outlined earlier in my judgment.

1. What, then, is to be done? In my judgment, the proper way and place to address prolix claims such as in these cases is at a case management discussion. Mummery LJ, in Commissioner of the Police of the Metropolis v Hendricks [2003] ICR 530 at page 544, paragraph 53 and paragraph 54 said this:

"53. I would add a few words on the case management aspects of a case like this, where the complaints involve numerous instances of acts by many different people over a long period. As appears from the directions already given, the tribunal chairman is well aware of the importance of directions hearings to ensure that the case is ready for hearing and to explore ways of saving time and costs.

54. Before the applications proceed to a substantive hearing the parties should attempt to agree a list of issues and to formulate proposals about ways and means of reducing the area of dispute, the number of witnesses and the volume of documents. Attempts must be made by all concerned to keep the discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations. The parties' representatives should consult with one another about their proposals before requesting another directions hearing before the chairman. It will be for him to decide how the matter should proceed, if it is impossible to reach a sensible agreement."

1. It is important not to lose sight of the overriding objective to be achieved in Employment Tribunal proceedings. To put in, as in these cases, what appear to be witness statements for the purpose of achieving a settlement may not be an appropriate way of furthering the overriding objective. What may be more helpful is an ET1 that focuses on the issues and the claims being made.

1. In these cases there will be case management discussions, where the legal representatives (or the parties, if not legally represented) should address the matters referred to by Mummery LJ in paragraphs 53 and 54 of the Judgment in Hendricks.

1. These appeals will be allowed. In the Svenska Handelsbanken case, the Respondent should provide a Respondent's notice. Neither of the Respondents are here or represented, and therefore are not here to address me on the time within which that notice should be provided. However, having regard to the indication originally given to them in the letters they were sent from the Employment Judge, and bearing in mind the prolixity of the ET1s, I give 28 days for the response by Svenska Handelsbanken to the ET1 as it stands.

1. There should thereafter be a case management discussion at which the issues should be identified, taking care to ensure that those are not more numerous than is necessary, as was pointed out in the case of [St Christopher's Fellowship v Walters-Ennis]() [2010] EWCA Civ 921.