Moustache v Chelsea And Westminster Hospital NHS Foundation Trust

Factual and Procedural Background

This employment case involved an employee who worked for Company A, an NHS Foundation Trust, from 2001 until her dismissal in 2019. The employee suffered from a physical disability following hip replacement operations and raised grievances about treatment by her line manager. After unresolved grievances and a prolonged absence due to health issues, she was dismissed on grounds of capability. The employee filed two claims with the Employment Tribunal (ET): the first alleging disability and age discrimination along with bullying, harassment, and victimisation; the second alleging unfair dismissal. The ET consolidated the claims and, following a remote hearing, dismissed all claims. The employee appealed to the Employment Appeal Tribunal (EAT), which allowed the appeal on the basis that the ET should have identified and determined an additional claim of disability discrimination arising from dismissal, which was not included in the agreed list of issues. The employer then appealed to the Court of Appeal.

Legal Issues Presented

1. What are the circumstances in which the Employment Tribunal has a duty to identify and determine a claim not included in an agreed list of issues?
2. Whether the Employment Appeal Tribunal was correct in concluding that the Employment Tribunal failed to discharge that duty in this case?

Arguments of the Parties

Appellant's Arguments

• The agreed list of issues properly reflected the claims advanced by the employee based on an objective analysis of the statements of case.
• The Employment Tribunal was entitled to proceed on the basis of the agreed list and was under no duty to identify or determine claims not included in that list.
• The employee had agreed the list of issues without raising a claim of disability discrimination arising from dismissal, and any attempt to widen the claim later was inappropriate.
• The Employment Appeal Tribunal erred by substituting its own judgment on the issues to be determined without an application to amend the list and by applying the wrong legal test.
• The Employment Tribunal acted fairly and impartially, and there was no evidence of oppression or unfairness in the agreement to the list of issues.

Respondent's Arguments

• The Employment Tribunal failed to identify and determine a claim of disability discrimination arising out of dismissal despite indications in the claim form and witness statement.
• The Tribunal should have clarified the position, particularly given the employee was self-represented and might have made a mistake in articulating the claim.
• The failure to consider this claim was an error of law warranting the appeal's allowance and remittance for re-hearing.
• The agreed list of issues did not include reference to a mental impairment or a claim under the relevant discrimination provision regarding dismissal, which should have been evident from the documents.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by clarifying the duty of the Employment Tribunal (ET) when parties have agreed a list of issues for determination. The ET’s role is to identify and decide claims that objectively emerge from the parties’ statements of case, which are primarily the pleadings (ET1 and responses). The list of issues is a case management tool summarising the pleaded claims but does not replace them.

The Court noted that while the ET has a duty to address claims clearly pleaded and pressed, it is not required to decide every conceivable claim or to act inquisitorially by prompting parties to amend or expand their claims. Particularly, the ET must remain impartial and avoid unfairness to any party.

The Court reviewed the facts and concluded that the employee’s second ET1 claim did not clearly plead a disability discrimination claim arising from dismissal. The employee did not tick the relevant box for such a claim, nor did the narrative clearly assert the essential elements of disability discrimination under the Equality Act 2010. The allegations related to unfair dismissal due to capability and stress caused by the line manager, but not to discrimination linked to dismissal.

The Court held that the agreed list of issues accurately reflected the claims objectively emerging from the pleadings. The ET was entitled to proceed on that basis without identifying or determining an unpleaded claim. The Employment Appeal Tribunal (EAT) erred in concluding otherwise, applying an incorrect legal test that required the ET to clarify or identify claims not clearly pleaded.

The Court emphasized that the ET’s duty is not to act as an inquisitorial body to identify and formulate claims for unrepresented litigants beyond what is pleaded. The employee’s agreement to the list of issues was informed and unequivocal. The ET’s conduct was fair and legitimate, including its approach to the list of issues at the hearing’s outset and throughout the proceedings.

The Court also considered and rejected the suggestion that the employer had a duty to alert the ET to the possibility of an unpleaded claim, and questioned whether the suggested clarifications would have saved time or expense given the procedural implications of adding a new claim late in proceedings.

Holding and Implications

The Court ALLOWED THE APPEAL, setting aside the decision of the Employment Appeal Tribunal and reinstating the Employment Tribunal’s final order dismissing all claims.

The direct effect is that the ET’s dismissal of the claims, based on the agreed list of issues, stands. The Court did not establish any new precedent beyond clarifying the ET’s duty to identify and determine claims within the scope of pleaded issues and the agreed list of issues. It reaffirmed the principle that the ET is not required to identify or determine claims that do not objectively emerge from the pleadings, even where parties are unrepresented. The decision underscores the importance of clear pleadings and the limited role of the ET in assisting litigants without legal representation.