Nicole Moustache v Chelsea and Westminster Hospital NHS Foundation Trust

An Employment Tribunal must determine claims which objectively emerge from the parties’ statements of case and fall within its jurisdiction. A list of issues is a case-management tool, not a pleading, but an agreed list will usually define the issues for hearing. Departure is required only where a pleaded claim was omitted without abandonment, or where fundamental fairness makes it essential to raise an unpleaded claim. The tribunal may clarify an unrepresented party’s case, but has no general inquisitorial duty to prompt a new claim. The second ET1 did not clearly plead disability discrimination arising from dismissal. The Tribunal was entitled to treat the agreed list as complete, and the EAT applied the wrong legal test.

The employee brought a first claim alleging age and disability discrimination and a second claim alleging unfair dismissal. The claims were consolidated, and the parties agreed a list of issues identifying seven discrimination complaints and the conventional unfair-dismissal questions.

The Employment Tribunal dismissed all claims. The Employment Appeal Tribunal allowed the employee’s appeal and ordered a rehearing, holding that the Tribunal should have identified a possible claim under the Equality Act 2010 arising from the dismissal: [2022] EAT 204. The employer appealed. The central issues were the scope of the Tribunal’s duty to identify claims outside an agreed list and whether that duty had been breached.

1. Disposition. The employer’s appeal was allowed. The EAT’s decision was set aside and the Employment Tribunal’s final order dismissing all claims was reinstated.
2. Statements of case. Issues are identified by an objective analysis of the ET1 and response in their proper context. The ET1 sets out the essential case to which the respondent must answer. The Tribunal is not generally required to analyse later witness statements or submissions to discover an unpleaded claim. The exercise should remain readily understandable and proportionate.
3. Tribunal duty and intervention. Where a claim emerges from the statements of case and is within the Tribunal’s jurisdiction, the Tribunal must determine it, subject to abandonment and the need to decide only what is necessary to resolve pressed claims. The Tribunal’s role is arbitral, not inquisitorial. Clarification may be appropriate, particularly for an unrepresented party, but is discretionary. There is no general duty to prompt an expansion or modification of a party’s case. Exceptional intervention is justified only where procedural fairness makes it essential, applying the principles explained in Drysdale v Department of Transport [2014] EWCA Civ 1083.
4. Agreed lists. An agreed list is a case-management document. The Tribunal will usually be entitled to confine the hearing to it. Departure may nevertheless be necessary where a pleaded claim was omitted without abandonment, or where fairness makes it essential to raise and consider an unpleaded claim. The authorities, including Parekh v Brent London Borough Council [2012] EWCA Civ 1630, Mervyn v BW Controls Ltd [2020] EWCA Civ 393 and Scicluna v Zippy Stitch Ltd [2020] EWCA Civ 1320, did not require the approach adopted by the EAT.
5. Application. The second ET1 identified unfair dismissal, referred to long-term sickness and work-related anxiety, and did not tick the disability-discrimination box. It did not clearly assert that the employee had a mental disability, that the dismissal was because of something arising from it, or that the dismissal was discriminatory. The agreed list accurately reflected the pleaded claims. The employee expressly accepted it, the Tribunal checked the issues at the hearing, and she raised no objection until after judgment. The EAT wrongly treated later documents as generating a duty to investigate and treated the agreement as neutral. The Tribunal’s decision was legitimate and was not arguably perverse or fundamentally unfair. The fact that the hearing was remote did not establish disadvantage.
6. A possible claim under section 15 of the Equality Act 2010 would in any event have required a fresh pleading and an amendment decision, including consideration of limitation, prejudice, further evidence and possible adjournment. The question whether dismissal was discriminatory remained analytically distinct from unfair dismissal.

• Court of Appeal (Civil Division): Allowed the employer’s appeal, set aside the EAT’s judgment and reinstated the Employment Tribunal’s final order: [2025] EWCA Civ 185.
• Employment Appeal Tribunal: Allowed the employee’s appeal and directed a rehearing, holding that the Employment Tribunal should have identified and addressed a possible disability-discrimination claim arising from dismissal: [2022] EAT 204.