Tribunal Should Have Clarified Litigant-in-Person Claims at Start of Hearing
The Employment Appeal Tribunal (EAT) has found that a Tribunal was wrong to rely solely on a list of issues agreed between a claimant and respondent, when the claim form and witness statement indicated an intention to bring another claim.
Background
In the case of Moustache v Chelsea and Westminster NHS Foundation Trust, Mrs Moustache brought claims of direct discrimination on the grounds of disability and age, relating to matters leading up to her dismissal. She also claimed unfair dismissal. In her claim form, Mrs Moustache talked about panic attacks, anxiety, and being signed off work. However, in her further and better particulars, she identified that her disability arose from a hip replacement.
The Trust was ordered to prepare a draft list of issues. A list of issues is a document setting out the questions the Tribunal will have to decide. Mrs Moustache agreed the list of issues drawn up by the Trust. The list of issues stated that Mrs Moustache's disability was related to mobility issues following a hip replacement. It did not refer to her mental health issues.
The Tribunal dismissed Mrs Moustache's claims and Mrs Moustache appealed to the EAT. She argued that the Tribunal had been wrong to fail to address a claim which had not been included in the list of issues. She argued that the Tribunal should have properly analysed the information she had provided in her claim form and witness statement in order to clarify her claims.
EAT Decision
The EAT upheld the appeal. Given that Mrs Moustache was unrepresented it would have been the correct approach for the Tribunal to ask her to explain the substance and factual basis of her claim in order to identify the issues for determination. A list of issues is a powerful case management tool which can be used to provide clarity and structure. However it is not a pleading in itself.
The EAT has remitted the claims to the Employment Tribunal for consideration
Comment
This case emphasises the care that must be taken when dealing with litigants in person. A list of issues is a key document that a Tribunal will use in order to determine a claim, but it can be amended by the Tribunal if it is incomplete. If a represented party is drafting a list of issues to be agreed by an unrepresented opponent, care must be taken to ensure the list fully sets out the issues in dispute.