Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
The claimant presented her claim in December 2017 and it was based upon disability/sex discrimination and constructive unfair dismissal. She sought to have both harassment and reasonable adjustments included in her claim but this was dismissed by the Employment Tribunal.
The claim that was submitted ran to 37 paragraphs and noted a lengthy and detailed narrative but there was little application, with no particular type of discrimination being asserted within that narrative. A Case Management Preliminary Hearing sought to deal with the narrative that was put forward, with an order for the provision of further particulars and an agreed list of issues to be produced by the parties. The issue arose as the list of issues produced by the claimant asserted some new claims and new facts. The Respondent opposed any amendment.
The application to amend was brought in late 2018 and hear in 2019. The decision was to not allow the amendment to include harassment and reasonable adjustments. This was appealed. The grounds for appeal were as follows:
(1) The Judge erred by failing to allow the claims of disability harassment to proceed; and
(2) There was an error under Section 20 of the Equality Act 2010 (duty to make adjustments) when it came to ‘aggressive horseplay’ and the grievance procedure.
Quite interestingly, before embarking upon the particular grounds of appeal, the EAT felt it necessary to provide its view on how the claim forms should be completed. It was held that:
"I do not encourage parties, particularly lawyers, to engage in that type of ‘narrative’ pleading. I would encourage legal representatives, in particular, to adopt a more succinct and clear drafting style. Whilst I do not suggest that the employment tribunal is a forum in which meticulous or unnecessarily pedantic pleading points should be raised, I do consider that, increasingly, there is a need to refocus on the purpose of a claim form, a formal document which initiates legal proceedings."
The Judge went on to state that the claim form sets out a legal claim and it is not a witness statement. Indeed, this gives rise to incidental issues such as rising costs and increased delay.
On the grounds of appeal, it was found that the first ground of appeal on the harassment claim should be allowed. The Judge outlined that there is a high hurdle to overcome when appealing case management decisions but that the original Judge had failed to properly provide any reasoning for the decision that was made. This meant that there was not a weighting exercise of the prejudice that may be faced by the claiming if they were not able to pursue the allegations.
The second ground of appeal was also allowed, with it being found that there was a lack of understanding by the Judge when it came to the common factors that were at play with the proposed amendment and the overall case. For this reason, both grounds of appeal were allowed.
Practical Lessons
The actual grounds of appeal are somewhat fact specific and provide only a limited lesson. However, the obiter dicta relating to the claim forms is of especial importance. The Tribunal noting that the claim form is designed to outline the legal claim and should not be seen as a witness statement is demonstrable of the annoyance/frustration that is faced by the Tribunal. The reason for the more succinct claim form is not only for the benefit of the Tribunal but, as noted, can ameliorate issues such as costs and delay.
https://assets.publishing.service.gov.uk/media/5f520b14e90e071ebf960dbc/C_v_D_UKEAT_0132_19_RN.pdf
Continue reading
We help hundreds of people like you understand how the latest changes in employment law impact your business.
Please log in to view the full article.
What you'll get:
- Help understand the ramifications of each important case from NI, GB and Europe
- Ensure your organisation's policies and procedures are fully compliant with NI law
- 24/7 access to all the content in the Legal Island Vault for research case law and HR issues
- Receive free preliminary advice on workplace issues from the employment team
Already a subscriber? Log in now or start a free trial