UK: Leniency Will Be Given To Unrepresented Claimants

Last Updated: 3 August 2018
Article by Emily Jones

Employment claims will not necessarily fail as a result of the Claimant failing to identify their case correctly

The Employment Appeal Tribunal ('the EAT') has recently overturned an Employment Tribunal's ('ET') decision after it had agreed with the Respondent's submission that the Claimant, who was unrepresented, had not correctly pleaded her case as one of constructive dismissal.

In the case of Aynge v Trickett, the Claimant, Miss Aynge, was employed at a restaurant which had previously been owned by her parents but was taken over by the Respondent, Mr Trickett, on 1 September 2016.

On 15 October 2016, the Claimant attended work and, following an altercation with the Respondent, she alleged she was told by him that 'this is your last shift tonight' and 'that's it, we're done'. The Claimant attended the restaurant the next day to collect her wages and enquire whether her employment had actually been terminated. On this occasion, the Respondent said to her: 'We would have got rid of you in the first week if it wasn't for your parents! We have been putting up with you.' The Claimant, who was unrepresented, then issued proceedings in the ET and on her ET1 form, where it asked her to indicate what type of claim she was making, she ticked 'I was unfairly dismissed (including unfair dismissal)'. She also stated that her employment ended on 15 October 2016. She then went on to detail her claim.

The Respondent agreed with the Claimant that her employment had ended on 15 October 2016 but defended the claim. He alleged that on 15 October 2016 he said to the Claimant that she would no longer work busy night shifts. The next day the Claimant attended the restaurant to collect her wages and asked aggressively if she had been sacked. She was informed that she had not been and when the Respondent said he would go and get her tips, the Claimant rudely replied to him that she did not want them and walked out. The Respondent did not hear anything further from the Claimant until he received her ET1.

In the Claimant's witness statement, she went into a lot more detail than set out in her ET1. Her statement described that she had asked the Respondent to clarify what he meant when he had said, 'This is your last shift' and 'that's it, you're done. Get out'. The Respondent's response was that the Claimant had misheard him and, in fact, he said 'this is your last busy shift tonight. You're not working a night shift again'.

The Respondent's representative submitted to the ET that the Claimant had therefore conceded in her witness statement that she had not been dismissed on 15 October 2016 and that her claim must fail as it alleged an express dismissal on that date. The ET agreed with this submission and dismissed the claim without hearing any further evidence.

The Claimant appealed the decision. The EAT upheld the appeal stating that the ET had taken an 'unduly technical approach' and had 'not taken sufficient account of the domestic context of the events [it] was concerned with or the fact that the Claimant was representing herself'. As the Claimant was representing herself, it could not be said that she knew that she had really conceded that she had not been dismissed on 15 October 2016, and it was unfair to say that she had not correctly identified her case in her ET1. The ET should have also considered whether or not to allow any amendments to the ET1. His Honour Judge Shanks therefore felt that 'the Claimant [had] suffered an injustice' and remitted the case back to a different ET.

This is a useful reminder for employers that an EAT will give the benefit of the doubt to an unrepresented claimant and demonstrates how it is important for both parties to use the Employment Tribunal's case management procedures to clarify the legal issues, and any other matters that may arise in the case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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