Evans v Svenska Handelsbanken AB (conjoined with Fairbank v Care Management Group)

An Employment Judge has no power to require a claimant to replace an accepted ET1 with a one-page concise statement where that direction may curtail the claims presented. The claimant decides which claims to advance, and the tribunal may adjudicate only upon the acts of which complaint has been made.

An ET1 should identify the legal basis of the claim and the essential facts. It should not be a witness statement. Prolix or unfocused pleadings should instead be managed at a case management discussion by identifying a proportionate list of issues and reducing unnecessary dispute. Unreasonable prolixity may have costs consequences.

Two claimants appealed conjoined case-management orders made under Schedule 1, rule 10(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Each had presented a lengthy ET1, prepared by the same solicitors. The Employment Judges directed each claimant to provide, within 14 days, a comprehensive concise statement of claims and minimal supporting facts limited to one side of A4.

The claimants contended that the directions would force them to omit claims and material already presented. The central issue was whether an Employment Judge could require an accepted claim form to be curtailed in that way, and how the tribunal should instead address prolix pleadings.

1. Appeals allowed. The Employment Judges had no power to make directions requiring the claimants to reduce their accepted ET1s to a one-page statement. A claimant decides which claims to advance. A direction that may compel the omission of claims already raised impermissibly curtails the tribunal’s jurisdiction to determine the acts complained of.

2. Rule 1(4) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 requires details of the claim. Although the tribunal should not prescribe a universal form of pleading, an ET1 will ordinarily identify the legal basis of the claim, the relevant act, its date, the actor, the reason alleged for it where relevant, and matters affecting remedy.

3. The ET1s appeared to include witness-statement material and contained many matters not serving the proper purpose of a claim form. That did not empower the Employment Judges to order their replacement by abbreviated claims. A respondent could not reasonably be expected to answer every factual allegation in such material.

4. The proper response to prolix pleadings is case management. The parties should identify and, where possible, agree a focused list of issues, reduce the scope of factual dispute, witnesses and documents, and keep proceedings within reasonable bounds. The list of issues must not itself become unnecessarily elaborate or numerous. Unreasonable conduct through prolix pleading may also justify a costs order after the hearing.

5. In the Svenska Handelsbanken appeal, the respondent was given 28 days to serve its response to the ET1 as presented. Thereafter both matters were directed to case management discussions.

• Employment Appeal Tribunal: Allowed the claimants’ conjoined appeals from Employment Judges’ directions requiring concise replacement statements of claim: [2012] UKEAT 0140_12_2003.
• Employment Tribunal: Made case-management directions under Schedule 1, rule 10(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 requiring one-page concise statements after accepting the ET1s.