Fairbank v Care Management Group (Practice and Procedure : Application or Claim)

An Employment Tribunal has no power to require a claimant to reduce an accepted claim form to a prescribed length where doing so may curtail the claims advanced. A claimant decides which claims to present, and the Tribunal may adjudicate only upon the acts complained of in the claim.

Prolix pleadings may create practical and costs consequences, but they should be addressed through case management. The parties should identify a concise list of issues and reduce unnecessary dispute, evidence and documentation without requiring a claimant to abandon complaints contained in the claim form.

Two conjoined appeals challenged orders made by Employment Judges requiring each claimant to replace a lengthy ET1 with a comprehensive statement, limited to one side of A4, before the claim proceeded.

The claim forms were each 27 pages long and appeared to include extensive factual material. The claimants contended that compliance would omit or restrict complaints already presented. The central issue was whether the Employment Judges had power to impose that restriction and, if not, how lengthy claim forms should properly be managed.

1. The appeals were allowed. The orders requiring concise replacement statements limited to one side of A4 could not stand. The Tribunal had no power to make orders which might curtail the claims contained in an accepted ET1.
2. Under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, a claim form must provide details of the claim. A claimant decides which claims to advance. Consistently with Chapman v Simon, the Tribunal’s jurisdiction is confined to the act complained of in the claim form; it cannot require a claimant effectively to abandon part of that claim.
3. The court declined to prescribe a universal drafting format. Ordinarily, the essential matters may include the legal basis of the claim, the act complained of, its date, the person responsible, the reason for the complaint where relevant, and matters affecting remedy. These observations were guidance, not a basis for restricting pleaded claims.
4. Lengthy claim forms may nevertheless have consequences. They can impede case management, need not require a respondent to answer every factual assertion, and may support a costs order where the conduct of proceedings has been unreasonable.
5. The proper response to a prolix ET1 is a case management discussion. Applying the guidance in Commissioner of the Police of the Metropolis v Hendricks, the parties should identify and, where possible, agree the issues and ways to reduce the area of dispute, witnesses and documents. The issues must not be more numerous than necessary.
6. In the Svenska Handelsbanken appeal, the respondent was given 28 days to submit its response to the ET1 as it stood. Case management discussions were then directed in both cases.

• Employment Appeal Tribunal: Conjoined appeals from Employment Judges’ case-management orders under Schedule 1, rule 10(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The appeals were allowed and the orders were set aside.
• Employment Tribunal: The Employment Judges had directed each claimant to provide a concise statement of claims and minimal supporting facts, not exceeding one side of A4.