Pranczk v Hampshire County Council

An Employment Tribunal must determine the claims from a fair and objective reading of the ET1 as a whole. A litigant in person need not use legal language or name a statutory cause of action, but the ET1 must assert the essential factual elements of that claim. Later witness statements, schedules of loss and correspondence cannot retrospectively enlarge or reinterpret the pleaded claim.

For costs, satisfying the threshold for unreasonable conduct under the Employment Tribunals Rules of Procedure 2013 does not compel an award. The Tribunal must separately decide whether to award costs and in what amount. Although ability to pay is discretionary, the Tribunal must consider whether to take it into account and act judicially, particularly where the proposed payer is absent and unrepresented.

The claimant, a litigant in person employed as a Night Care Assistant, presented an ET1 seeking arrears of pay and compensation for lost annual leave. She did not attend the full merits hearing. The Employment Tribunal dismissed the claims after the wages were paid and the leave was re-credited, and awarded the respondent £750 costs for unreasonable conduct.

The claimant appealed. She contended that the ET1 also advanced claims of disability discrimination and victimisation under the Equality Act 2010, and challenged the costs award. The central issues were whether the ET1, properly construed, pleaded those additional claims, and whether the Tribunal lawfully exercised its costs discretion in the claimant’s absence.

1. Appeal allowed in part. The dismissal of the substantive claims stood. The £750 costs award was quashed, with no remission.

2. The ET1 is the document which identifies the essential case to which a respondent must answer. It must be construed fairly and objectively as a whole, with appropriate allowance for a litigant in person and without requiring technical terminology. However, its essential factual elements must be found in the ET1 itself. The Tribunal could not use the ET3, witness statement, schedule of loss or later correspondence to recast the claim.

3. The ET1 pleaded only wage and holiday-pay complaints. Long-term sickness absence did not, without more, assert that the claimant was disabled or that the absence arose from disability. Nor did the ordinary use of “victimisation” assert a complaint under section 27 of the Equality Act 2010. The form identified treatment said to result from sickness absence, not a protected act or treatment caused by one. It therefore did not contain claims under sections 13, 15 or 27.

4. Under rule 76 of the Employment Tribunals Rules of Procedure 2013, a finding of unreasonable conduct only passes the threshold for a costs award. The Tribunal must then make a separate discretionary decision whether to award costs and, if so, in what amount.

5. Rule 84 permits, but does not require, consideration of ability to pay. The Tribunal must nevertheless consider whether to take means into account and act judicially. The claimant’s absence did not automatically justify disregarding her means. The Tribunal had no proper basis to infer that she had knowingly declined the opportunity to oppose costs, and did not address the second-stage discretion or means. Those omissions were errors of law.

• Employment Appeal Tribunal: appeal allowed in part; the substantive dismissal was upheld and the costs order was quashed: [2020] UKEAT 0272_19_1206.
• Employment Tribunal: dismissed the wage and annual-leave claims and ordered the claimant to pay £750 costs. No citation was stated for that judgment.