A plea for pleadings

05 February 2015

Chandhok v Tirkey is primarily about whether treatment on the basis of caste falls within race discrimination for the purposes of the equality act. Short version: sometimes it does, but it depends on the facts of the case.

But President Langstaff also lays down strong guidance about the importance of pleadings and the need for tribunal to decide the case on the basis of the issues set out in the ET1 and ET3 – not matters raised in other documents or orally before the tribunal.

In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a Tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the Tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an Employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.

In one sense, I have sympathy with this approach. Pleadings should mean something. And it’s hard to disagree that good pleadings help both tribunal and parties to focus – and stay focused – on the issues.

But I don’t think the guidance in Chandhok grapples with the challenges of a jurisdiction where many parties aren’t represented.

A lot of ET1s and ET3s cross my desk at FRU. The majority of the ET1s are prepared by claimants on their own, or with only very limited assistance. Probably about half of the ET3s are the same.

There is simply no way that most litigants in person, either claimants or respondents, are going to be able to set out their case with the sort of precision that Chandhok calls for.

Chandhok itself involves close reading of the provisions of the Equality Act defining race, so as to place certain forms of caste identity within the definition of ethnic or national origins on the basis that caste may be defined by descent and contain sufficient ethnic identity to be a form of race.

Many litigants in person will be wholly unfamiliar with these concepts. And the ET1 simply asks claimants to ‘Please set out the background and details of your claim in the space below’. I doubt one claimant in a thousand making a race discrimination claim ponders, much less sets out, whether they were discriminated on the basis of their colour, their nationality, their national origin, or some combination.

They just want to say that their employer shouldn’t have kept saying ‘I think people like you should go home’, then dismissing them on trumped up incapacity allegations and promoting a white colleague. They may fundamentally mischaracterise their claim, in the legal sense, by relying on victimisation when they mean direct discrimination or harassment. (Disability discrimination claims seem to be particularly prone to this, with people relying on direct discrimination when their case is really about a failure to make reasonable adjustments).

Sometimes these mistakes won’t matter, even applying the strict approach in Chandhok, because the tribunal can see through to the essential bones of the case. But in cases which raise difficult legal issues or are on the intersections between different types of claims, this can be much harder.

I also see many claims for unfair dismissal that, broadly speaking, say ‘I was dismissed after being accused of X misconduct. I didn’t do it and my dismissal was unfair.’ In the legal sense, this doesn’t amount to an unfair dismissal at all, because the tribunal can’t substitute its own view for the employer’s by considering whether the misconduct occurred.

Should all of these claims be struck out, because the pleadings don’t disclose a proper cause of action? Or should tribunals make some effort to get to the bottom of the claimant’s complaint and help them phrase the allegation is a more legally appropriate way? Even if this involves drawing on material from witness statements rather than the claim form?

This isn’t, by any means, an issue only for claimants. Lots of respondents don’t understand the law either. And they put in just as scrappy ET3s.

There has to be a balance struck between the free for all President Langstaff fears and a legalistic approach that turns tribunal proceedings into an intellectual obstacle course. But I don’t think Chandhok has got this right.

It seems to me that the proper approach is to trust to the discretion of tribunal judges to take account of the circumstances of the parties and the nature of the case.

Where parties are well aware of the nature of the dispute between them and perfectly able to meet it, the tribunal should be reluctant to allow pleading points. I don’t think we need have a lot of sympathy for a respondent, with an experienced HR team and represented by lawyers, who faces questions from a tribunal about their disciplinary procedure, even if these haven’t been raised in the claim form. These are likely to be obvious points that almost certainly occurred to their lawyers when they got the papers.

Where there is genuine unfairness in allowing a case to go beyond the pleadings the tribunal should be stricter. Raising new heads of claim at a hearing should normally be hard. And, where new allegations would require new evidence to be produced in response or other delays, they should be considered only reluctantly.

The main focus for the tribunal should be the balance of prejudice between the parties. In other words, who will suffer more if the tribunal decides against them by either keeping out, or letting in, a point that wasn’t in the pleadings?

I fear the strict approach in Chandhok could only work if all parties were professionally represented from the start. Then, if a point wasn’t raised, one could say, with some justice, that their representatives should have known better. But most litigants in person don’t know better – and shouldn’t be expected to.

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