N Moustache v Chelsea and Westminster NHS Foundation Trust

A list of issues is a case-management tool, not a pleading. An Employment Tribunal must not apply it rigidly where that would prevent a fair determination of the real issues, particularly where a party is unrepresented.

Where a litigant in person’s claim form, particulars or evidence gives an obvious indication of a legally available claim, the Tribunal should clarify whether that claim is pursued. It should revisit the list of issues at the substantive hearing where necessary in the interests of justice. Failure to clarify an apparent claim of discrimination arising from dismissal was an error of law.

The Claimant, a long-serving hospital employee, brought consolidated claims after her dismissal on capability grounds following long-term sickness absence. She represented herself before the Employment Tribunal, which heard the case remotely and dismissed her unfair-dismissal and pleaded discrimination claims.

The agreed revised list of issues did not include discrimination arising from disability in respect of dismissal. However, the Claimant’s second claim form referred to dismissal because she remained signed off with work-related stress, and her witness statement said that her mental-health deterioration amounted to a disability.

The appeal concerned whether the Tribunal had failed to identify and determine a claim under section 15 of the Equality Act 2010, and whether that omission affected the determination of unfair dismissal.

1. Appeal allowed. The Employment Tribunal erred in failing to clarify and determine the apparent claim that dismissal was discrimination arising from disability under section 15 of the Equality Act 2010.

2. A list of issues is not a pleading. It is a useful means of giving structure and clarity, but its use remains subject to the overriding objective in rule 2 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. A Tribunal must not adhere to it slavishly if that would preclude a fair and just determination of the real dispute. The position is particularly important where a party is unrepresented.

3. The Claimant’s material gave an obvious indication of a connection between asserted mental-health disability, long-term absence caused by anxiety and stress, and dismissal after a sickness hearing. That indication became still clearer in her witness statement. The Tribunal should have revisited the list of issues at the outset of the final hearing and sought clarification. The point should in any event have been raised when the Claimant referred in closing submissions to her mental-health disability.

4. The wholly remote format did not alter the Tribunal’s duties. It could make communication and clarification with litigants in person more difficult, so those difficulties should not be underestimated when contested hearings are listed remotely.

5. The failure to clarify the discrimination claim was an error. The unfair-dismissal claim and the discrimination claim were remitted for fresh consideration. The judge’s provisional view was that remission should be to a different Tribunal, subject to further written submissions.

• Employment Appeal Tribunal: allowed the appeal and remitted the unfair-dismissal and discrimination claims for fresh consideration: [2022] EAT 204.
• Employment Tribunal, London South: dismissed the Claimant’s unfair-dismissal, disability-discrimination and age-discrimination claims in reasons sent to the parties on 14 January 2021.