Although claimants must fill in a specific form when lodging their claim, the EAT has made clear in Pereira v GFT Financial Ltd that tribunals should not adopt a narrow or legalistic approach when appraising the form. This is because the claim's validity does not depend on whether a particular box has been ticked or not, but whether it has properly been included in the claim form.
Basic facts
In November 2018 - five months into her probationary period - Ms Pereira was dismissed allegedly because of her performance and skill set. She claimed it was because she had told her employer ten days previously that she was pregnant.
On 20 December, she lodged a tribunal application form (ET1) claiming unfair dismissal and sex discrimination. However, she did not tick the box on the form for pregnancy or maternity discrimination.
Regarding the details of her complaints, she set these out in a long document headed: “Discrimination at work – gender (sex) based bullying, threatening and harassment”, as opposed to the ET1. This should not have presented a problem, however, as it is quite common for claimants to attach a separate sheet with all the details of their complaint.
Tribunal decision
After receiving legal advice, Ms Pereira applied on 5 April 2019 to add claims for automatic unfair dismissal on grounds of her pregnancy and for asserting a statutory right.
The tribunal refused the application, holding that she had not provided a coherent explanation for why she did not just tick the box on the ET1 to include a claim for pregnancy dismissal. In any event, it held that the claims were out of time and it was not “just and equitable to extend time”. It added that, as a highly educated woman, she had been perfectly capable of researching and bringing the claims herself without any help.
However, the tribunal did not have (nor was it referred to) the grounds of the complaint document or the attachments to her application at that hearing. Instead, it just heard evidence from Ms Pereira herself.
She asked for that decision to be reconsidered on the basis that although highly educated, she had poor concentration and memory at the time she was presenting her claims due to her anxiety and depression disorder. After several delays (partly because of COVID-19 and partly because the tribunal lost her file), the tribunal refused her application.
She appealed, arguing that the tribunal had excluded relevant considerations – the contents of the original claim; whilst including irrelevant considerations – her educational credentials which had no relevance to her potential legal expertise or qualifications.
EAT decision
The EAT allowed the appeal, pointing out that if the tribunal had read the claim form including its attachments, it would have concluded that the substance of the amendments was already part of her claim and that Ms Pereira did not need to amend it at all.
As the EAT pointed out, claims come in all shapes and sizes and tribunals must look for the substance of a complaint by considering the whole of the claim form instead of adopting a technical, narrow, or legalistic approach when identifying a complaint. “A claim does not stand or fall depending on whether a box has been ticked, but whether it has properly been included in the claim form as a whole”.
The EAT concluded that in the interests of justice, it would remit the case to a new tribunal to decide whether there should be a reconsideration hearing or whether the original judgment should be affirmed, varied or revoked.
Comment
Although this case may assist claimants, it is always better to ensure all claims are referred to in the claim form and that the appropriate boxes are ticked.
