Moustache vs Chelsea and Westminster Hospital NHS Foundation Trust

Introduction

It is an established principle in litigation that Tribunals and Courts should only really determine a dispute between parties in the pleadings or the statements of case (essentially the claim and the defence).  Part of the process of an Employment Tribunal however, particularly with unrepresented litigants, is that the Tribunal holds a case management hearing early on in litigation to clarify what claims are pleaded and to produce a “list of issues” which attempt to crystalise the legal issues that the Tribunal has to determine at the final hearing.

There is an ongoing debate in case law as to the extent to which a Tribunal can simply rely on the list of issues in the final hearing, or has a duty to enquire further into what was disputed in the pleadings, particularly if something has been missed.  The Tribunals have a legal duty to make sure that the parties are on an equal footing and the problem for employers here is this has often led Judges to be flexible with determining what is pleaded by the Claimant, adding to the list of issues on judicial enquiry matters which were not originally pleaded. 

As will be seen below, a liberal (and pro-Claimant) interpretation by the Employment Appeal Tribunal (EAT) was superseded by a more orthodox approach by the Court of Appeal.

Facts

The Claimant brought a claim for direct discrimination on the grounds of disability and age because of the way in which the Trust dealt with a grievance submitted by the Claimant for bullying. The Claimant also made allegations of discrimination in her claim form under s.15 of the Equality Act 2010 – and went on to describe that she suffered from panic attacks and being signed off work as a result.  In further and better particulars however, she noted her disability arose from a hip replacement. 

A list of issues was drawn up by the Trust however just prior to the preliminary hearing the Claimant was dismissed, resulting in the Claimant bringing a second Tribunal claim for unfair dismissal for being dismissed for long-term sick leave.  The two claims were combined, and the Trust provided the Claimant with a revised list of issues.  The Claimant subsequently agreed the revised list of issues which now identified that the disability to which she referred, was a ‘mobility issue’, following her hip replacement.  The list of issues also referred to a single incident of unfavourable treatment and not to any ‘mental impairment’ or any claim under s.15 of the Equality Act albeit there was reference to Claimant’s mental health deteriorating in her witness statement.

The decision of the Tribunal and the decision of the EAT

The Tribunal, having only determined the issues as contained on the list of issues, dismissed the Claimant’s claim.   The Claimant appealed the case arguing that the Tribunal had failed to determine an additional claim of disability discrimination arising from her dismissal. The EAT upheld the appeal, emphasising that even if the claim of disability discrimination was not specifically contained in the list of issues, there was sufficient information on the papers to highlight to the Tribunal that the dismissal was unlawful disability discrimination.  In the EAT’s view the list of issues should have been revisited and failure to do so was an error of law. 

Court of Appeal

The Trust then took the matter on appeal where it was subsequently held that a Tribunal’s failure to include a claim within an agreed list of issues will only amount to an error of law if it is perverse. The EAT held that for the Tribunal to have identified a disability discrimination claim it would have had to employ an inquisitorial approach, which is not for the Tribunal to do, noting that it is for the parties to identify the claims that they wish to pursue and defences they wish to present. 

Comment

The Court of Appeal here was returning to an orthodox approach to litigation and trying to restate clearly the role of the Tribunal in an adversarial process.  Whilst there was a duty put the parties on an equal footing, the case serves as a warning (especially to the EAT) that the Tribunal’s role was ultimately to determine issues in the pleadings and unless it was perverse that a Tribunal had missed something, it was not really the Tribunal’s role to interpret or add to claims for the Claimant.  It is a case to be welcomed by motor industry employers.