The claims form (ET1)
The purpose of a claims form (otherwise known as an application or ET1) is to set out what the claim is for and on what legal basis it is made. It should allow the respondent to understand how they are alleged to have breached their obligations and to form their response. Failure to set this out clearly can cause problems later in the legal process.
The case of C v D illustrated the importance of correct drafting when making an employment claim.
The problems with a narrative style
The claim concerned constructive unfair dismissal and discrimination on the grounds of disability and sex.
The application gave a lengthy account of events, running to six pages. However, the claim did not set out which legal provisions the claimant was relying on or detail the type of discrimination the claimant believed she had faced (for example, direct, indirect, harassment). While the claim described plenty of incidents, it did not explain the relevance of each, or which incidents related to sex discrimination and which to discrimination based on disability.
During the Case Management stage, the court ordered the parties to produce an agreed list of issues to help clarify the claim.
The list of issues was intended to explain the information already given, and clarify which facts related to which claims for discrimination. However, the respondent objected, arguing that the changes added new facts not given in the original claim. Facts cannot be added to a claim after submission (unless with the agreement of both parties or permission of the tribunal) as this would be unfair to the respondent, who would not have the chance to prepare their defence to these details.
For this reason, the tribunal did not consider any information that was not present in the original claim when making its decision. The claimant appealed to the Employment Appeal Tribunal.
The appeal judge called C v D “a paradigm example of that which can occur when a claim is not set out with sufficient legal precision.” Where the parties find it difficult to understand the issues in dispute, more time is taken to understand the claim and less time is available to prepare their own argument or defence.
In this case, poor drafting led to delays and added stages of case management, and therefore increased costs. The appeal stage could have been avoided had the claim been well drafted, as there would have been no confusion over which information the tribunal should consider.
How to draft a claim form correctly
The appeal judge specifically discouraged parties from using a narrative style, and instead suggested a succinct approach.
The claim should summarise which laws or duties the claimant alleges the respondent has breached, and how they have breached them. Only the key details should be included in the claims form, and it is important to explain why any facts included are relevant.
Further relevant facts and details should be set out in a witness statement rather than a claims form. A claims form may specify that further detail will be offered in a witness statement.
Do I need specialist legal support?
The appeal judge recognised that there would be different considerations where parties represent themselves without specialist legal advice. However, while the tribunal may have different expectations for parties who are representing themselves, it cannot avoid the unnecessary delays or confusion caused by poor drafting. In this case the need for an appeal could have been avoided had the claims form been drafted more efficiently.
You do not necessarily need to be a legal professional to write a succinct summary of your case. However, an employment law specialist will understand the law that forms the basis of your claim and will be well practiced at identifying and summarising the most important information.
A poorly drafted claims form could lead to delays and added costs, and so legal advice may prove to be cost effective investment in the long run. In the worst cases, a strong claim can fail because of poor drafting.
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