Clarifying the Tribunal’s Duty to Identify Claims Not Clearly Pleaded

1. Introduction

The case of Moustache v Chelsea And Westminster Hospital NHS Foundation Trust ([2025] EWCA Civ 185) revolves around whether an Employment Tribunal (ET) must consider, on its own initiative, a claim not clearly set out in a claimant’s ET1 (the statutory claim form) or explicitly included in the final agreed list of issues.

This was an employment dispute in which Ms. Nicole Moustache (the “employee”) claimed various forms of discrimination (age and disability) and unfair dismissal against her former employer, Chelsea and Westminster Hospital NHS Foundation Trust (the “employer”). The Employment Tribunal dismissed all her claims as they were framed in the agreed list of issues, and an appeal to the Employment Appeal Tribunal (EAT) followed. The EAT’s decision was eventually challenged in the Court of Appeal, which ultimately reinstated the ET’s dismissal of the unpleaded discrimination claim.

The analysis below explores the background, the overarching legal rules, and the reasons why the Court of Appeal held that the ET was not obliged to consider a new, unpleaded claim that was not in the agreed list of issues.

2. Summary of the Judgment

The employee initially lodged two sets of claims (the “First Claim” and the “Second Claim”), which were consolidated. The First Claim focused on events prior to her dismissal and the way her earlier grievances were handled by the employer. The Second Claim concerned unfair dismissal, in which the employee asserted that she had been dismissed unjustly due to long-term sickness absence.

Prior to the final hearing, a list of issues was agreed upon by both parties. This list dealt with:

Age and disability discrimination arising from incidents prior to the dismissal.
Jurisdictional/time-limit issues.
Standard unfair dismissal considerations (reasonableness, fairness of the procedure, etc.).

Crucially, there was no explicit claim in that list for dismissal as a further act of disability discrimination under Section 15 of the Equality Act 2010 based on the employee’s mental health condition.

The Employment Tribunal dismissed all claims in line with the agreed list of issues. The Employment Appeal Tribunal (EAT) held that the ET should have identified a possible further disability dismissal claim and erred by not considering it. However, the Court of Appeal reversed the EAT’s ruling. It explained that, given the litigation’s adversarial nature, the ET had no obligation to extract or invite unpleaded claims from the evidence unless the claim was “obvious” from the formal pleadings or the circumstances were truly exceptional.

Therefore, the Court of Appeal set aside the EAT’s decision, reinstated the ET’s final order, and reinforced that while tribunals may sometimes consider unpleaded issues in the interests of fairness, they are not expected to assume an investigative function and introduce new claims for a party.

3. Analysis

3.1 Precedents Cited

The Court of Appeal discussed a number of important authorities that clarify an Employment Tribunal’s role in determining whether it must engage with claims not fully or explicitly pleaded:

Parekh v Brent London Borough Council [2012] EWCA Civ 1630: Held that a list of issues is generally binding, but the tribunal retains the power to deviate from it where strictly necessary to do justice.
McLeary v One Housing Group Ltd (UKEAT/0124/18): Outlined the principle that if a certain claim “shouts out” from the original pleadings, the ET should consider it. However, the facts must unambiguously support the claim.
Mervyn v BW Controls Ltd [2020] EWCA Civ 393: Reinforced that a tribunal should check if the formal pleadings clearly indicate a claim, even if that claim does not appear in the list of issues, but only in exceptional circumstances will it deviate from an agreed list.
X v Y [2024] EAT 63: Affirmed that pleadings matter in Employment Tribunal proceedings as they define the cases on which parties must focus their evidence and arguments.
Chandhok v Tirkey [2015] ICR 527: Confirmed that the ET1 is the pivotal document and that any expansion of claims generally requires formal amendment, rather than reliance on statements or submissions.
Scicluna v Zippy Stitch Ltd [2020] EWCA Civ 1320: Emphasized that an agreed list of issues is a “roadmap,” and a tribunal should not depart from it unless critical to a just resolution.

These cases collectively show that while an Employment Tribunal has a duty to clarify the issues for an unrepresented party, that duty does not require the tribunal to add unpleaded matters or “fish” for potential claims not set out in the formal pleadings.

3.2 Legal Reasoning

The Court of Appeal’s reasoning centered on the adversarial nature of tribunal proceedings:

Adversarial Not Investigatory: Tribunals decide cases based on the arguments advanced by the parties. If a claimant does not clearly plead a particular claim—especially where they are sophisticated enough to understand basic discrimination laws—the tribunal is not obliged to extrapolate and construct that claim for them.
Significance of Agreed List of Issues: An agreed list generally “binds” the parties to the identified areas of dispute. Once an unrepresented litigant has clearly confirmed this list, the tribunal is entitled to assume that no other claims are being pursued, unless the circumstances “shout out” that something more was intended.
Exceptional Overrides: The Court recognized that in exceptional situations, fairness might require a tribunal to consider an unpleaded claim that obviously arises from the pleadings. However, in this case, the employee’s second ET1 did not include an explicit reference to disability discrimination by dismissal, did not tick the relevant box for discrimination claims, and did not link her mental anxiety condition directly to a claim arising under the Equality Act 2010.
Consistency with Case Law: The Court reinforced that the “shouts out” or “obvious claim” test applies. If the essential elements of a claim are nowhere clearly asserted and the claimant proceeds on a narrower set of issues, the ET is entitled to focus on those issues alone.

Consequently, the Court of Appeal found that the EAT had overstepped. The EAT suggested the ET should have investigated whether the employee might have a disability dismissal claim. The Court of Appeal held that, absent a clear basis in the ET1 or deeply obvious facts pointing to such a claim, the ET was correct not to address it.

3.3 Impact

The judgment provides valuable guidance for future employment litigation. It underscores several key points:

Clear Pleadings are Crucial: If a party wishes to allege disability discrimination (or any other legal claim), they should do so unequivocally in the ET1 itself. Merely mentioning facts that might hint at a possible additional claim is not enough.
Final Lists of Issues “Bind” the Tribunal: Once a list of issues is agreed on, especially by a claimant who has some capacity to understand the process, the tribunal will proceed on that basis. Departure requires exceptional circumstances.
Limited “Duty to Clarify” for Unrepresented Parties: Although an ETS judge can guide an unrepresented litigant to clarify claims, there is no broad obligation to volunteer or “create” claims for them. Impartiality would be threatened if the tribunal became too interventionist.
Risk of Unnecessary Delay: Introducing unpleaded claims at the last moment could waste time and resources, since fresh applications, adjournments, or additional evidence might be needed.

Going forward, unrepresented employees (or litigants generally) should consider at an early stage whether they properly plead all claims they wish to pursue. Employers and legal representatives may rely on the final agreed list to limit the scope of the hearing.

4. Complex Concepts Simplified

Several legal terms appear in the judgment:

ET1/ET3: The ET1 is the claim form filed by the employee initiating the case; the ET3 is the employer’s response. These forms set out the issues for the tribunal.
Statement of Case/Pleadings: These are the official documents (ET1 and ET3) that define the parties’ allegations and responses. Later documents (witness statements, submissions) can clarify but normally cannot add a new cause of action without permission or amendment.
Section 15 of the Equality Act 2010: This section outlaws treating someone unfavorably because of something arising in consequence of their disability, unless such treatment can be objectively justified.
Time Limits & Out of Time: Discrimination claims must be filed with the Employment Tribunal within specified timeframes. Sometimes acts occurring too early cannot be considered unless a tribunal extends the limit.
Overriding Objective: Under Employment Tribunal Rules, the tribunal must ensure cases are dealt with fairly and justly, including avoiding unnecessary complexity or expense.

The Court of Appeal clarifies that properly defining the scope of a claim in the ET1 prevents confusion and ensures the other side can respond correctly.

5. Conclusion

The Moustache v Chelsea And Westminster Hospital NHS Foundation Trust decision reinforces a key principle in modern employment litigation: an Employment Tribunal’s core duty is to resolve the pleaded claims specified by the parties, rather than searching out potential unpleaded claims. While tribunals do have a duty to clarify genuine ambiguities—especially for unrepresented claimants— they are not required to infer entirely new claims that a claimant has not explicitly pursued.

The Court of Appeal’s reinstatement of the ET’s dismissal underscores that:

Parties must set out their claims clearly in the formal pleadings (ET1 and ET3).
An agreed list of issues typically defines the full scope of the hearing, except in rare cases where justice demands revisiting it.
The tribunal is not an investigative body; it is required to remain impartial and cannot craft claims for either side.

Looking ahead, this ruling offers crucial clarity on the limits of judicial intervention when claims are unrepresented or loosely described in ancillary documents. Ultimately, fairness, common sense, and adherence to the core adversarial model remain the touchstones guiding the tribunal process. This case stands as a reminder that while tribunals strive for fairness, they are bound by the defined issues and cannot stray from them without good reason.