Badra v Gardiner & Theobald LLP

An ET1 may contain only minimal detail, but it must still identify the nature of the claim. It must either make a specific allegation of a claim within the Employment Tribunal’s jurisdiction or refer to facts from which that claim can reasonably and objectively be discerned.

A reference to sex discrimination, or merely to pay or overtime, does not identify an equal pay claim. The form must indicate that the claimant alleges unequal pay for equal work, or set out facts from which that allegation is apparent.

The claimant appealed from a case management decision of the Employment Tribunal dated 27 August 2009. The Tribunal held that her consolidated ET1s did not contain a claim for equal pay and that an amendment to add such a claim would be refused.

The claimant had ticked the form’s box for sex discrimination, including equal pay, and referred to a male colleague receiving overtime payments while she worked long hours without pay. The claim forms otherwise advanced sex discrimination allegations. By the time an equal pay amendment was considered, the limitation period had expired.

The central issue was whether the ET1 contained sufficient details to constitute an equal pay claim.

1. Appeal dismissed. The ET1 did not contain a claim for equal pay. The Employment Tribunal was correct to treat it as advancing a claim of sex discrimination only.
2. The requirements for an ET1 may be minimalist, but the form must identify with sufficient clarity the nature of the claim, so that a reasonable employer can discern the cause of action alleged. It must contain either a specific allegation of an employment claim within the Tribunal’s jurisdiction or facts from which that claim can reasonably and objectively be discerned.
3. The approach in Grimmer v KLM City Hopper [2005] IRLR 596 was applied. Although further particulars may be obtained during case management, the claim must first disclose the relevant employment right. The present ET1 did not meet even that minimum threshold.
4. A reference to sex discrimination does not incorporate a distinct equal pay claim. The reasoning in Ali v National Office of Statistics [2005] IRLR 2001 supported that distinction. The mere fact that the claimant alleged that a male colleague received overtime while she did not did not identify unequal contractual pay for equal work.
5. The analogy with the minimalist grievance requirements under Schedule 2 to the Employment Act 2002 was limited. An ET1 initiates litigation, must enable the employer to plead to it, and expressly requires details of the claim. The guidance in Suffolk Mental Health Partnership Trust v Hurst [2009] IRLR 12 and Suffolk Mental Health Partnership Trust v Hurst [2009] EWCA Civ 309 did not justify accepting this form as an equal pay claim.
6. Any amendment would in any event have been statute barred, and the Tribunal would have had to consider the Selkent principles. The appeal therefore failed.

• Employment Tribunal: Employment Judge Sigsworth held on 27 August 2009 that the ET1 did not contain an equal pay claim and that an amendment would be refused.
• Employment Appeal Tribunal: The appeal was directed to a full hearing by HHJ McMullen QC on 7 April 2010. The Employment Appeal Tribunal, presided over by His Honour Judge Serota QC sitting alone, dismissed the appeal.