The Court of Appeal held that an Employment Tribunal does not breach its duty by restricting its determination to claims contained in an agreed list of issues where those claims comprehensively represent issues raised in the statements of case, notwithstanding a party’s unrepresented status.

Background

The appellant, employed as a senior administrator (2001-2019), developed a disability following hip replacements. She filed two ET claims: first alleging disability/age discrimination regarding pre-dismissal treatment, then unfair dismissal. The parties agreed a list of issues excluding any claim that the dismissal itself constituted disability discrimination. When the ET dismissed all claims, the EAT allowed an appeal, holding that the ET should have determined a disability discrimination claim arising from dismissal despite its absence from the agreed list.

Judgment

Warby LJ (Elisabeth Laing and Dingemans LJJ concurring), held:

• ET proceedings remain fundamentally adversarial, not inquisitorial; parties bear primary responsibility for identifying claims ([33])
• Issues derive from “objective analysis of the statements of case” not subsequent documentation ([34]), applying Chandhok v Tirkey [2015] ICR 527
• While an ET must adjudicate properly raised issues, it has “no general duty to take pro-active steps to prompt some expansion or modification of the case advanced by a party” ([37]), following Drysdale v Department of Transport [2014] EWCA Civ 1083
• The EAT’s approach was “fundamentally mistaken in law” for treating the agreed list as “a factor of no weight or at best neutral” ([60])

Although departure from an agreed list may occur in exceptional circumstances (per Scicluna v Zippy Stitch Ltd [2020] EWCA Civ 1320), the instant case did not qualify as the respondent had not adequately pleaded a discriminatory dismissal claim in her ET1.

Endnote

This judgment provides clarification on the boundaries of judicial assistance to litigants in person, reinforcing the primacy of pleadings in ET proceedings. Tribunals are constrained from adopting inquisitorial approaches, even where potential claims might be discernible from documentation beyond formal pleadings. 

Read the full judgment: Moustache v Chelsea and Westminster Hospital NHS Trust [2025] EWCA Civ 185