Pleadings and natural justice | Employment Law Advocates

When points about pleadings are taken in employment tribunal litigation, it can often cause confusion for all concerned. Parties often assert that there are strict rules about what must be included in the claim form, for example, that particular sections of the legislation should be cited if they are to be relied upon. The reality is rather more subtle, as illustrated by the judgment of the Employment Appeal Tribunal in Khetab v AGA Medical. The parties arrived at a pre-hearing review expecting there to be a determination of whether there was a prima facie case that there had been a continuing act of discrimination. If so, it would allow the claimant to rely on acts that would otherwise be out of time. Instead the employment judge raised a question of whether a continuing act had been pleaded and found that it had not.

In allowing the appeal, Judge Peter Clark asked himself this question: “What is the purpose of pleadings in the Employment Tribunal? It is so that the other party and the Employment Tribunal understand the case being advanced by each party so that his opponent has a proper opportunity to meet it.” In this case, therefore, because the respondent had been well aware that the claimant was relying on a continuing act, and had not been taken by surprise by it, the pleading point ought not to have been taken, considering all the circumstances.

A similar approach can be discerned from two earlier decisions of Peter Clark. In Hanly v Norinchukin, it was argued that the tribunal had erred in failing to consider a hypothetical comparator when the actual comparator, as was identified by the claimant, proved to be unsuitable. It was held that, although it would have been open to the tribunal to consider a hypothetical comparator, so long as it had put this suggestion squarely to the respondent during the hearing, the point could not be taken for the first time on appeal because the respondent had not been given an chance to deal with it and would have been prejudiced.

In Manchester Metropolitan University v D’Silva, Peter Clark stated that the issue raised in Hanly was one of natural justice and went on to say the same about Chapman v Simon, a famous Court of Appeal case about pleadings. He cited Stanley Cole v Sheridan, another decision of the Court of Appeal, concerning a similar point about when a judgment can be overturned when it refers to authorities not mentioned by the parties in submissions. From this it can be concluded that, when arguing a pleading point, the proper focus is not on the technicalities of what is in the claim form, but rather on questions of fairness to the parties.