When an employer faces claims before an employment tribunal, the tribunal must determine the issues based on what has been pleaded and agreed upon by the parties. The Court of Appeal has ruled that a tribunal is not under a duty to identify and determine a discrimination claim that has not been pleaded or included in an agreed list of issues, even where the Claimant is a litigant in person.
In this case, Mrs. Moustache, a senior administrator, brought claims against Chelsea and Westminster NHS Foundation Trust for direct discrimination based on age and disability. She later submitted a second claim for unfair dismissal, alleging that she had been dismissed for being on long-term sick leave. The claims were consolidated, and a list of issues was prepared by the employer and agreed upon by Mrs. Moustache. This list identified her disability as mobility issues following hip replacements and made no reference to a claim of dismissal amounting to discrimination under section 15 of the Equality Act 2010.
The employment tribunal dismissed all claims, stating that the issues had been determined based on the agreed list. On appeal, the EAT ruled that the tribunal had erred by failing to clarify whether Mrs. Moustache was also making a claim for discriminatory dismissal. The EAT held that tribunals should not slavishly adhere to a list of issues where the evidence suggests a broader claim and that tribunals have a duty to clarify claims brought by litigants in person.
The employer appealed, and the Court of Appeal overturned the EAT’s decision. It held that employment tribunals operate within an adversarial system and are entitled to rely on the agreed list of issues. A tribunal is not required to interpret claims from witness statements or other case documents unless a claim clearly emerges from the formal pleadings. The Court found that Mrs. Moustache was an articulate individual who had previously demonstrated an understanding of discrimination law and had explicitly agreed to the final list of issues. Her failure to tick the relevant box on her ET1 form to claim that her dismissal was discriminatory was given significant weight.
The Court ruled that the tribunal had acted fairly and was not under a duty to construct claims on behalf of a litigant in person. It also emphasised that while tribunals may assist unrepresented claimants, they must remain impartial and should not enter the adversarial arena by prompting an application to amend a claim. The tribunal’s duty of impartiality meant it could not infer a claim that was not expressly made.
As a result, the tribunal’s original decision was reinstated, and the Trust’s appeal was allowed.Case
Mrs N Moustache v Chelsea and Westminster NHS Foundation Trust: 2304434/2018 and 2303674/2019 – Corrected Reserved Judgment
