Court of Appeal confirms tribunals are not required to determine unpleaded claims

Background

In the case of Moustache v Chelsea and Westminster NHS Foundation Trust, the claimant, a litigant in person, brought claims for direct disability discrimination and unfair dismissal. She alleged that her dismissal was due to long-term sickness absence. The agreed list of issues, prepared by the employer and accepted by the claimant, identified her asserted disability as a 'mobility issue' following hip surgery. It did not include a claim that her dismissal was discriminatory under section 15 of the Equality Act 2010.

The tribunal dismissed all claims, finding that the claimant had been fairly dismissed on capability grounds. It did not consider a claim of discriminatory dismissal, as no such claim had been pleaded or included in the list of issues.

The claimant appealed, arguing that the tribunal had failed to determine a claim for discriminatory dismissal, which she contended was evident from her witness statement and other documents. The EAT allowed her appeal, holding that the tribunal had placed undue reliance on the agreed list of issues and should have clarified the scope of her claims.

Court of Appeal judgment

The Court of Appeal overturned the EAT’s ruling, reaffirming that tribunals determine claims based on an objective analysis of the pleadings and agreed list of issues. While a failure to address a clearly identifiable claim may amount to an error of law, a tribunal is not required to identify claims that do not emerge from the statements of case, except in exceptional circumstances.

The court rejected the EAT’s finding that a claim for discriminatory dismissal was evident from the claimant’s ET1, witness statement, and closing submissions. It held that tribunals should not interpret issues by reference to documents other than the pleadings. In this case, the tribunal could only have identified a section 15 claim by taking an inquisitorial approach and prompting an application to amend the claim—something it was not required, and indeed not permitted, to do under its duty of impartiality.

The judgment confirms that tribunals must remain neutral arbiters rather than actively assisting litigants in person in formulating their claims. While a tribunal has discretion to explore a litigant’s case where necessary, this must be done within the constraints of fairness and the adversarial nature of tribunal proceedings. The agreed list of issues plays a crucial role in defining the scope of proceedings, and tribunals are entitled to rely on it.

However, this judgment should be viewed in the context of how tribunals operate in practice when dealing with litigants in person. While tribunals are not required to go beyond the pleaded case, they do have discretion to clarify a claimant’s complaints, particularly at preliminary hearings. This often involves questioning the claimant to ensure they understand the nature of their claims and to confirm the scope of the issues to be determined. Such questioning does not mean the tribunal is taking on an inquisitorial role but is instead part of its duty to deal with cases fairly and justly. The extent of this intervention is a matter of judgment and varies depending on the circumstances of each case.

Comment

This case provides useful clarification on the limits of a tribunal’s duty to assist litigants in person. It reinforces that what is included in the pleadings—the ET1 and ET3—is critical in determining the claims that will be considered. While tribunals retain some discretion to clarify issues, they are not required to infer claims from background documents, such as witness statements or submissions.

For employers, the judgment underscores the importance of ensuring that the list of issues is carefully drafted and agreed upon at an early stage. It also serves as a reminder that where a claimant attempts to introduce unpleaded claims, employers should object to prevent unnecessary procedural disputes. However, employers should remain mindful that in practice, tribunals may take steps to clarify the claims being brought, particularly at preliminary hearings, to ensure that all parties understand the issues in dispute before the case proceeds.

For more information or advice, please contact Sharmin Chowdury in our Employment team on 07900 570 032, or complete the form below.