Nicole Moustache v Chelsea and Westminster Hospital NHS Foundation Trust

The Court of Appeal allowed the employer's appeal and set aside the Employment Appeal Tribunal's decision to remit the case for rehearing. The court held that an employment tribunal is ordinarily entitled to confine its determination to an agreed list of issues and that it has no general duty to identify and determine claims that do not emerge from an objective analysis of the pleaded statements of case.

The court explained that a tribunal must decide any claim that clearly emerges from the ET1 and the respondent's answer, or where omission from a list of issues does not amount to abandonment, but that departure from an agreed list is confined to exceptional circumstances. Relevant provisions considered included rule 2 (the overriding objective) and rule 29 (case management) of Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 and sections 6 and 15 of the Equality Act 2010.

Applying those principles, the court concluded the claimant had not pleaded that her dismissal was an act of disability discrimination; the agreed list of issues accurately reflected the pleaded case; and the Employment Tribunal was entitled to proceed on that basis. The EAT had applied the wrong test and erred in law.

Background and parties. The respondent, a long‑serving employee, brought claims in the Employment Tribunal for disability discrimination, age discrimination and unfair dismissal following a period of sickness absence and subsequent dismissal for capability. The appellant employer defended those claims.

Procedural posture and relief sought. The two ET1 claims were consolidated. The claimant sought compensation and, for discrimination claims, recommendations. The Employment Tribunal, applying an agreed list of issues prepared shortly before hearing, dismissed all claims. The claimant appealed to the Employment Appeal Tribunal, which allowed the appeal and remitted the case for rehearing on the basis that the ET had failed to identify and determine an asserted claim of disability discrimination arising from dismissal. The employer appealed that EAT decision to the Court of Appeal.

Issues before the Court of Appeal. (i) What is the nature and scope of an ET's duty to identify and determine a claim not included in an agreed list of issues? (ii) Whether the EAT was correct to find that the ET had erred by not identifying a disability discrimination claim arising from dismissal.

Issues recorded and tried in the ET. The agreed list of issues comprised discrete disability and age discrimination allegations (relating to specified events between May 2017 and October 2018), a jurisdiction/timeliness issue, and the conventional three questions for unfair dismissal: whether there was a potentially fair reason, whether dismissal was reasonable in all the circumstances, and whether a fair procedure was followed.

Court's reasoning. The court emphasised four propositions: (1) ET proceedings are adversarial and parties bear primary responsibility to identify their claims; (2) the issues the tribunal must decide are those which emerge clearly from an objective reading of the statements of case; (3) if a claim so emerges, the tribunal has a duty to address it, subject to the tribunal not being required to decide abandoned or unpressed claims; and (4) the tribunal is arbitral, not inquisitorial, and its obligation to assist unrepresented parties has limits.

The court held that a list of issues is a case‑management tool intended to summarise the pleadings and that a tribunal will usually be entitled to confine itself to it. Departure from an agreed list is justified only in exceptional circumstances: (a) where a pleaded claim has been omitted from the list without amounting to abandonment; or (b) where fairness makes it essential to raise and consider an unpleaded claim. The Court of Appeal concluded that the claimant had not pleaded that her dismissal was discriminatory under section 15 of the Equality Act 2010. She had not used the language or elements of that cause of action in the second ET1, there was no clear assertion that her mental ill‑health amounted to a disability for the purposes of section 6, and she had expressly accepted the final agreed list of issues in writing shortly before trial.

Disposition. The appeal was allowed. The EAT's decision was set aside and the Employment Tribunal's final order dismissing all claims was reinstated.

Appeal allowed. The Court of Appeal held that an Employment Tribunal is ordinarily entitled to confine itself to an agreed list of issues and has no general duty to identify and determine claims that do not emerge from an objective analysis of the parties' statements of case. Departure from an agreed list is limited to exceptional circumstances (for example, a pleaded claim omitted from the list without abandonment, or where fundamental fairness requires the tribunal to raise an unpleaded claim). Applying that test, the claimant had not pleaded that her dismissal was an act of disability discrimination and the ET was entitled to proceed on the agreed list; the EAT erred in law by requiring the ET to elicit and determine such a claim.

Employment Tribunal (final decision, reserved 6 January 2021, reasons sent 22 February 2021) -> Employment Appeal Tribunal, HHJ Katherine Tucker [2022] EAT 204 (appeal allowed and matter remitted) -> Court of Appeal [2025] EWCA Civ 185 (appeal allowed; EAT decision set aside; ET order reinstated).