Employment Cases Update

C v D (Practice and Procedure) UKEAT/0132/19/RN

Date published: 05/10/2020

Appeal against the ET’s refusal to allow two amendments to the Claimant’s claim. Appeal allowed.

The Claimant brought claims in the ET for constructive unfair dismissal and discrimination on grounds of disability and sex. The Particulars of Complaint, which ran to 37 paragraphs over six pages, referred to the protected characteristics of disability and sex in express terms and set out a lengthy and detailed narrative of alleged events, but did not set out clearly which facts related to which protected characteristic; and the Respondent's Response was also in a narrative style. Further details of the claim were set out in a List of Issues, which the Respondent asserted raised new claims and facts, and the ET gave its decision on the application to amend. The Claimant appealed on the grounds that the ET had erred by failing to allow the claims of disability harassment to proceed, and in refusing to allow an amendment to plead a failure to make reasonable adjustments.

The EAT held, as to the first ground, that the ET's explanation of how the legal principles applied to the facts of this case and the application to amend was inadequate, even taking account of the high hurdle to be overcome when seeking to appeal case management decisions. As to the second ground, the ET did not appear to consider the fact that it had allowed one amendment to be made, but failed to explain why that one should succeed when the other did not. Accordingly, the appeal would be allowed, and the EAT would hear submissions as to disposal of the appeal.

The EAT encouraged legal representatives to adopt a more succinct drafting style, rather than the "narrative" pleading used in this case, which makes the task of an ET that needs to case manage the case more difficult, including taking more time than may be available to properly identify the issues.

Read the full text of the judgment on BAILII or download the file by clicking the link below.