How long can an EAT pleading be?
The EAT has issued some guidance on written pleadings which will make employers breathe a sigh of relief. All too often, employment tribunal claims run to several pages, documenting several years of alleged ill treatment, often without stipulating a single legal claim.
The EAT has provided its wisdom in a case called C v D, where the employee had brought a claim for discrimination which ran to 37 paragraphs over 6 pages.
Discrimination pleadings and protected characteristics
The claim form provided a narrative account of the alleged discrimination. It referred to two different protected characteristics but didn’t say which facts related to which characteristic. Nor did the employee say what type of discrimination was being claimed.
What is a narrative EAT pleading?
The employer replied in narrative style, requesting further information, which the employee provided. When that further information arrived, the employer said the employee was raising new claims and new facts which would now be out of time. An employment tribunal judge refused to allow certain amendments to the claim, so the employee appealed.
What should be included on an EAT pleading claim form?
As part of her reasoning, the EAT judge discouraged the use of ‘narrative’ pleadings and encouraged legal representatives to use more succinct and clear drafting.
Claim forms are not witness statements. They should set out a brief statement of the relevant facts and then the cause of action relied on, such as unfair dismissal or the specific discrimination claim (direct, indirect, discrimination arising from disability, etc) rather than just saying ‘I have been discriminated against’.
Difference between a claim form and a witness statement
Witness statements are the place to set out the exhaustive factual detail if it is relevant. This case showed all too clearly what happens if claims lack sufficient legal precision: costs increase (because of the extra hearings and work entailed), time is lost, and delay is inevitable.
Responding to an EAT claim form - Advice
There is a balance to be struck here, both in claim forms and responding to them. Sufficient factual basis to support a claim or response, but not too much. The difficulty in striking that balance is the reason many pleadings are overly verbose. There is definitely merit in getting someone legally qualified to draft pleadings, so that this balance can be properly struck, and legal proceedings get off to a good start.
Chris Dobbs, Employment Solicitor says "The EAT’s guidance emphasises the importance of well-drafted pleadings in any legal proceedings. The claim form and response are the primary documents on which the tribunal will rely to understand the pleaded case and the defence so they must be clear, easy to follow and deal with specific events which are said to be unlawful. Being drafted in a narrative style is unlikely to be sufficient by itself to see a claim struck out but they are much more helpful if they make definite allegations rather than provide the background story; that can always wait for witness statements."
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