Employment claims

Employment claims: when faced with an unrepresented claimant, should a tribunal identify and determine a claim which is not on the agreed list of issues?

Employment tribunals often order the production of an agreed list of issues as part of getting a case ready for hearing. Can the tribunal confine itself to the claims and issues identified by the parties? Or, when faced with an unrepresented claimant, is the tribunal duty bound to identify and determine a claim that is not identified on an agreed list of issues. The Court of Appeal recently considered those questions.

M, who was unrepresented, brought two separate claims. Her first claim was for direct disability discrimination arising from pre-termination matters. She later brought an unfair dismissal claim. The two claims were later combined into a single set of proceedings. In compliance with a case management order, the employer produced a list of issues which did not identify a claim for a discriminatory dismissal. This list of issues was sent to, and approved by, M. The tribunal went on to dismiss M’s claims following a full hearing. M successfully appealed to the EAT, which held that the tribunal placed overreliance on the agreed list of issues and had failed to clarify M’s claims. However, the Court of Appeal upheld the employer’s appeal.

The Court of Appeal noted employment proceedings are adversarial and the parties themselves have the primary onus to identify their claims, defences and any issues. An agreed list of issues is a case management tool designed to summarise the existing pleadings; it is not a pleading in itself and it does not amend the parties’ claims or defence. The tribunal’s role is not inquisitorial; it has no general duty to pro-actively prompt the expansion/modification of the case. Tribunals should objectively analyse the parties’ statements of case to identify the claims/issues. Only in exceptional circumstances will a failure to identify a claim that does not emerge from this objective analysis be an error of law. In exceptional circumstances, the interests of justice may require the tribunal to depart from the agreed list of issues. For example, if a pleaded claim has been inadvertently omitted from the list (without being abandoned), or where the fundamental duty of fairness makes it necessary/essential that an unpled claim is considered. However, in the absence of such exceptional circumstances, the tribunal is generally entitled to confine itself to determining the issues that the parties have themselves identified on the list of issues.

The Court went on to conclude that the EAT had been wrong to interfere in the tribunal’s determination of M’s claims. On an objective analysis of the pleadings, M had not claimed that her dismissal was an act of disability discrimination. For example, she had not ticked the relevant box on the claim form. She was an articulate, professional woman who had demonstrated that she understood disability discrimination in her first claim form. M’s second claim form did not contain the essential elements of a disability discrimination claim relating to her dismissal. The tribunal could only have identified a claim that her dismissal amounted to disability discrimination by adopting an inquisitorial approach (wrongly), and encouraging M to seek to expand her existing claims. Doing so would have compromised the tribunal’s impartiality. 

Moustache -v- Chelsea and Westminster NHS Foundation Trust [2025] EWCA Civ 185