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How claims get created

You start with a set of facts that are capable of supporting a claim. For example, you did not get a promotion, because your employer is prejudiced against women. This is less favourable treatment because of your gender, which is the basis for a direct sex discrimination claim.

The tribunal claim is created at the point that you submit an ET1 containing the allegation of discrimination. Until this happens you have not brought a claim.

The only way of creating a claim is to include it in an ET1 (although this can be done by amending the ET1 later, if the tribunal gives permission).

This is important because without a claim in existence the tribunal cannot find in your favour. They cannot decide the claim at all; there is nothing to decide.

Put like this, it sounds obvious. But it is fairly common for people to try to rely on allegations in grievance letters, inter-parties correspondence or witness statements to found a claim. This does not work; if you want the tribunal to decide something, it must be in the ET1.

This does not mean, however, that every fact you want to mention in the tribunal must be in your ET1. The basis of your claim (i.e. that your manager is a male chauvinist who didn’t promote you) must be there, but you don’t need to include every patronising remark he made over the last two years. Much of that detailed material will be brought in at the witness statement stage.

3 comments

  1. Bill Ryan

    I think this important information for anyone making a claim. Sometimes it is just too easy to put too much detail about subsidiary matters and miss some of the important headline issues.

    A recent ET1 I ‘picked up’ was big on information about potential discrimination but failed to mention unfair dimissal. A serious omission in that it was essentially an unfair dismissal claim.

  2. Naomi

    I’m afraid this is bad advice. There are lots of claims that only an employment tribunal can decide – if you have a claim of that kind, trying to bring it in the county court will be a waste of time and money.

    Some litigants experience the employment tribunal process as disappointing and unfair. Some get results they are satisfied with. There are costs and risks (financial and emotional) in all kinds of litigation. The important thing is to make sure you weigh up the costs, potential benefits and risks before you start.

    Often the best thing will be to say ‘shit happens’ and move on. That may be very unfair, but still better for you than getting into an expensive and emotionally destructive dispute that will dominate your thoughts and consume your time and energy for years.

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