Aynge v. Trickett (t/a Sully Club Restaurant)

An Employment Tribunal should not adopt an unduly technical reading of an unrepresented claimant’s pleading where, read fairly, it identifies the essential unfair-dismissal dispute and both parties are prepared to address the relevant events. The purposes of pleadings, including fair notice, jurisdictional control, proportionality and case management, remain important; but they were satisfied where the parties had prepared evidence on the events said to constitute dismissal.

An ambiguous concession by a litigant in person should not be treated as determinative without careful consideration. If a distinct formulation of dismissal requires amendment, the Tribunal should at least consider whether an amendment should be allowed in fairness.

The Claimant, acting in person, alleged unfair dismissal following events at the Respondent’s pub and restaurant on 15 and 16 October 2016. Her ET1 gave 15 October as the employment end date, described statements made on that day, and also referred to a further exchange on 16 October.

At the two-day merits hearing, the Employment Judge treated the Claimant’s evidence as conceding that she had not been expressly dismissed on 15 October. He held that this was her only pleaded case and dismissed the claim after hearing only her evidence. The Claimant appealed. The central issue was whether the Tribunal had fairly confined the claim to an express dismissal on 15 October without considering other readings of the pleaded case or amendment.

1. Appeal allowed. The Employment Judge’s approach denied the Claimant a fair hearing. The claim was remitted to a different Employment Judge for a fresh determination.

2. The alleged concession did not clearly amount to an acceptance that there had been no express dismissal on 15 October. On the Claimant’s account, the initial words used by the Respondent, or a later instruction to leave, could potentially be construed as an express dismissal. A litigant in person could not fairly be expected to analyse the exchanges or understand the significance of a concession in the manner required by the Employment Judge.

3. On a fair reading, the ET1 sufficiently raised an unfair-dismissal claim arising from the events of both 15 and 16 October. It was open to the Tribunal, after making factual findings, to consider constructive dismissal on 15 October or actual or constructive dismissal on 16 October. Both parties had pleaded and prepared detailed evidence about those events.

4. The Court applied the pleading principles in Chandhok v Tirkey [2015] IRLR 195. Their purposes were met: each party knew the substance of the opposing case; no limitation issue arose; the planned two-day hearing and associated costs were proportionate; and the central issues remained focused.

5. Even if the ET1 did not encompass the alternative analyses of dismissal, the Employment Judge should at least have considered whether to permit an amendment. No conclusion was reached on whether an amendment was necessary or should succeed. The remitted Tribunal must decide the case afresh; the appeal did not determine that the Claimant’s unfair-dismissal claim would succeed on its merits.

• Employment Appeal Tribunal: Appeal allowed and the unfair-dismissal claim remitted for a fresh hearing before a different Employment Judge.
• Employment Tribunal, Cardiff: Employment Judge Cadney dismissed the unfair-dismissal claim in a judgment sent on 25 August 2017 after determining a preliminary issue concerning dismissal.