Andrew v Cledor Ltd & Anor

An Employment Tribunal must read an ET1 and attached particulars fairly and as a whole, particularly where the claimant is unrepresented. A claim need not be confined to its formal headings if the pleaded narrative fairly alleges a distinct complaint of discrimination or harassment.

Particulars which merely elaborate such a pleaded complaint do not require amendment. New and unpleaded discrimination claims do require permission to amend. Permission may properly be refused where the claims are prima facie out of time and no viable basis for them is apparent.

The claimant appealed from Employment Judge Emerton’s decision, sent to the parties on 29 November 2012 following a pre-hearing review. The judge held that her particulars of sex-discrimination claims went beyond her ET1 and refused permission to amend.

The claimant had pleaded unfair dismissal and discriminatory dismissal against Cledor Ltd, and alleged that Cluttons LLP had instructed Cledor to remove her from the building in a discriminatory manner. The central issue was whether the ET1 and attached particulars also pleaded a sex-discrimination and harassment claim concerning her treatment by Cledor, through her line manager, Mr Regnier.

1. Appeal allowed in part. The Employment Judge construed the pleadings too narrowly. On a fair reading of the attached particulars, with appropriate allowance for the claimant’s status as a litigant in person, they alleged sex discrimination and harassment by Cledor through Mr Regnier which did not arise directly from the dismissal.

2. The allegation that Mr Regnier treated the claimant differently from male colleagues, combined with allegations of hostile, intimidating and bullying conduct, was sufficient to identify one pleaded claim. The claimant therefore did not need permission to amend in order to give particulars of that claim.

3. The pleadings did not, however, allege that Cluttons’ instruction concerning 24-hour cover was itself sex discrimination. Nor did they reveal any other arguable discrimination claim against either respondent. Claims extending beyond the pleaded complaint against Cledor required amendment.

4. The judge’s original refusal of amendment could not be faulted on the premise that all the proposed particulars were new. The corrected construction materially reduced the proposed amendment, but the EAT nevertheless refused permission for further claims. They would have been introduced long after they were prima facie time-barred, and no other viable basis for sex discrimination was apparent.

5. The claim against Cluttons remained limited to the alleged discriminatory instruction to remove the claimant from her role, causing her dismissal. The claimant could provide particulars of the already pleaded allegations against Cledor. A further preliminary hearing was suggested to address limitation, any proposed TUPE point, and case-management directions.

• Employment Appeal Tribunal: allowed the appeal to the extent that the ET1 and particulars already pleaded a claim of sex discrimination and harassment by Cledor through Mr Regnier; otherwise upheld the refusal to permit further amendment.
• Employment Tribunal: Employment Judge Emerton, following a pre-hearing review, held that the claimant’s particulars widened the pleaded sex-discrimination claims and refused permission to amend.