Besmir Pepkolaj v Barrett Steel Limited

An Employment Tribunal must determine claims which emerge clearly from an objective analysis of the parties’ statements of case. It does not have a general duty to identify a different claim which the pleaded facts merely make possible, or to prompt an unrepresented party to amend the claim for that party’s advantage.

That discretion must be exercised fairly and impartially. An appellate court will rarely interfere with it. A claim form alleging dismissal during ill-health absence did not, without more, plead discrimination arising from disability under section 15 of the Equality Act 2010, particularly where the claimant denied being disabled and did not identify discrimination. The Tribunal was therefore not required to consider a just-and-equitable extension for an unpleaded discrimination claim.

The claimant, a crane operator and warehouse assistant, was dismissed on ill-health capability grounds while absent following a wrist injury and awaiting further surgery. He presented an Employment Tribunal claim on 6 February 2023. He selected unfair dismissal, did not select disability discrimination, and answered "no" to the question whether he had a disability.

Employment Judge Fowell held that the effective date of termination was 29 September 2022 and dismissed the unfair-dismissal complaint as out of time. That ruling was not challenged. On appeal, the claimant contended that the ET1, the response, and medical material required the Employment Judge to identify a claim under section 15 of the Equality Act 2010 and consider extending time on a just-and-equitable basis.

The central issue was whether the Employment Tribunal erred in law by failing to identify such a disability-discrimination complaint.

1. Appeal dismissed. The Employment Judge did not err in law by treating unfair dismissal as the sole complaint and by deciding only its limitation issue.

2. Applying Moustache, the claims before an Employment Tribunal are those which emerge clearly from an objective analysis of the statements of case. The ET1 indicated, at most, a possibility that the claimant might have brought discrimination arising from disability. His wrist injury, continuing inability to perform his job and the duration of absence could suggest the components of disability. The respondent’s reference to adjustments and dismissal for incapacity could also suggest a section 15 claim.

3. Those matters did not plead that claim. The claimant neither selected disability discrimination nor asserted disability; he expressly answered that he was not disabled. Ill-health capability dismissal does not necessarily involve disability discrimination, since not all ill health is a disability. On an objective analysis, no complaint under section 15 of the Equality Act 2010 emerged clearly from the ET1.

4. The Tribunal was not required to examine the medical report, witness material or liability statement to discover an unpleaded claim. It could permissibly have explored the issue or the possibility of amendment, particularly because the claimant was unrepresented. However, its role was arbitral rather than inquisitorial, and it had no general duty proactively to invite an expansion or modification of the claimant’s case. Its decision not to do so fell within its broad judgment and discretion.

5. As no disability-discrimination claim had been brought, there was no basis to consider a just-and-equitable extension of time for it. The appeal therefore failed.

• Employment Appeal Tribunal: Appeal dismissed: [2026] EAT 14.
• Employment Tribunal: Employment Judge E Fowell dismissed the unfair-dismissal complaint as presented out of time following a hearing on 27 July 2023. The dismissal of that complaint was not challenged on appeal.