Employment Appeal Tribunal
Unlike failure to plead a matter in a claim form, failure to provide further and better particulars was not relevant to the issue of jurisdiction. The employment tribunal therefore had jurisdiction to entertain a race discrimination claim where a claimant had pleaded the claim in his claim form, but had failed to comply with an order to provide further and better particulars.
The appellant employee (M) appealed against a decision that the employment tribunal had no jurisdiction to consider his claim of race discrimination against the respondent employer (W).
M had been dismissed by W. He issued an ET1, in which he claimed race discrimination, indicating that he had been tricked by managers into doing things which they used to accuse him of misconduct and to discipline and dismiss him. There was nothing to suggest on what basis his dismissal was said to be racially motivated and M was ordered to provide further and better particulars of each and every allegation, act or admission alleged to amount to race discrimination. He served further and better particulars, but they made no reference to the race discrimination. The employment tribunal concluded that it did not have jurisdiction to entertain the discrimination claim because it had not been pleaded, either in the original claim form or in the further and better particulars.
M argued that the ET1 contained a clear reference to the dismissal having been racially motivated and the employment tribunal had therefore been bound to deal with the issue.
HELD: It was apparent that little or no evidence had been advanced, in the ET1, to show that the dismissal had been racially motivated. Reference to discrimination had also been conspicuously omitted from the further and better particulars. It was unfortunate that the employment tribunal had not itself suggested that the issue could be determined by M amending the further and better particulars, since it should have been clear that M had intended at all times to assert that the dismissal was discriminatory and it was hard to see what prejudice W would suffer by reason of its amendment (see paras 46-48 of judgment). Failure to plead a matter in an ET1 was not simply a technicality; it was relevant to jurisdiction. However, in the instant case, it was clear that the ET1 did contain a plea that the dismissal was an act of discrimination. The employment tribunal had been wrong to find otherwise. No argument had been raised that the allegations made by M in the ET1 should have been treated as abandoned because of their absence from the further and better particulars. The issue had been pleaded but not properly particularised, and failure to provide proper further and better particulars was not relevant to jurisdiction, Chapman v Simon [1994] I.R.L.R. 124 and Ahuja v Inghams (A Firm) [2002] EWCA Civ 1292, [2002] I.C.R. 1485 distinguished because the disputed issues had not been pleaded at all in those cases. The employment tribunal had had jurisdiction to entertain the claim (paras 52-58).
Appeal allowed
LTL 07/02/2012
