Tribunal’s order to limit length of claim form overturned by Employment Appeal Tribunal

The Employment Appeal Tribunal has found the Employment Tribunal had no power to order that a lengthy claim form should be limited to a one page document. Fairbank v Care Management Group and Evans v Svenska Handelsbanken AB EAT.

Background

The regulations that govern the Employment Tribunal process are the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (“the Tribunal Rules”).The Tribunal Rules set out that the following are required in the claim form:

  1. Each claimant’s name;
  2. Each claimant’s address;
  3. The name of each person against whom the claim is made (the respondent);
  4. Each respondent’s address; and
  5. Details of the claim.

Further detail in relation to what should be included is provided in case law (including Chapman v Simon), which confirms that the essentials to be pleaded are: 1) the legal basis for the claim; 2) when the act or omission complained of occurred; 3) who carried out the act; 4) what the act was; 5) if relevant, why it is said that the act was carried out; and 6) anything affecting remedy.

The Employment Judge also has the discretion to make an Order during the proceedings either on the application of a party or on his/her own initiative “in relation to any matter which appears to him to be appropriate”. There is a non-exhaustive list of the types of orders which an Employment Judge may make. It was under this discretion that the Employment Judge in this case had made an order to limit the length of the claim form.

Case summary

The Employment Appeal Tribunal considered the submissions from two cases heard together, which both related to the same issue. Claimants Fairbank and Evans were both represented by the same firm of solicitors and had both submitted lengthy claim forms (27 pages each) in their separate claims against their different employers, and had included what appeared to be the claimants’ witness statements within the particulars.

Both claims were accepted by the Employment Tribunal but referred to an Employment Judge due to the length of the claim form. The Employment Judge directed that the claimants should provide a “concise statement of the claim” which “should not exceed one side of A4 paper” and then extended the time for the employer to submit its response to 28 days after the concise statement had been approved and forwarded to the Respondent.

The claimants’ solicitors wrote to the Regional Employment Judge at the Employment Tribunal to query the Order. The Regional Employment Judge stated that in his view the “details of the claim” as required by the Tribunal Rules, was not the same as the “particulars of claim”. The Regional Employment Judge also referred the claimants’ solicitors to the overriding objective which requires the parties to deal with cases in ways proportionate to the complexity of the case or the importance of the issues and with a view to saving expense. The Regional Employment Judge disagreed that there was any disadvantage to the claimants and did not interfere with the decision.

Both claimants appealed to the Employment Appeal Tribunal submitting that the decisions were “perverse, incorrect and an improper exercise of discretion contrary to the [Tribunal Rules] and to natural justice”. The claimants submitted that Employment Judges had no power to curtail a claim made in a claim form and that as the Tribunal can only adjudicate on claims presented to them, the claimants would be at risk, if compelled to condense their claim into one side of A4 paper, of not presenting the claims which they wish to raise. The respondents did not attend the appeal.

The Employment Appeal Tribunal upheld the claimants’ appeal that it was an error of law/perverse as the Tribunal had no power to make the order to limit the claim form. The judge held that the proper way to address lengthy claims is at a case management discussion by agreeing a list of issues and by both parties attempting to reduce the area of dispute, the number of witnesses and the volume of documents by concentrating on the most serious and the more recent allegations. The Employment Appeal Tribunal also held that if the claim has been conducted unreasonably this may lead to a costs order, irrespective of the outcome of the claims.

The mattered was referred back to the Employment Tribunal to list a case management discussion.

Comment

This decision may be disappointing for employers faced with unreasonably lengthy claims but the judgement does give useful guidance on the appropriate way of dealing with such claims.

Interestingly, when asked by the Employment Appeal Tribunal why it was necessary for the claim to be that long, the claimants’ counsel confirmed that it was the solicitor’s  technique to give full material to the respondent and as a method to achieve settlement, and therefore in accordance with the overriding objective. Another way to look at it is that it is a method of throwing multiple allegations at an employer and hoping that some of them stick or that the employer will get an indication that the litigation will be a long and drawn out process and feel more inclined towards settlement.

This technique was criticised by the Employment Appeal Tribunal in a fairly mild rebuke, namely that including “what appear to be witness statements for the purposes of achieving a settlement may not be an appropriate way of furthering the overriding objective”.  One source of comfort for employers was that the Employment Appeal Tribunal confirmed that the respondent could not be expected to respond to each factual allegation when lengthy claim forms are, in effect, witness statements.