No duty to add an unpleaded claim for litigant in person, holds the Court of Appeal

The Court of Appeal has overturned the EAT’s ruling that an employment tribunal was under a duty to identify and determine a discrimination claim which had not been pleaded by a litigant in person.

Mrs Moustache brought separate claims for direct discrimination prior to the termination of her employment and a later unfair dismissal claim on grounds that she was dismissed for being on long-term sick leave. As is common in the tribunals the claims were consolidated and heard as one. The Respondent Trust prepared a list of issues and this was agreed by Mrs Moustache. A list of issues is essentially a list of all the items that a tribunal must consider at final hearing – a sort of legal shopping list. Mrs Moustache said she had a disability comprising mobility issues after having a hip replacement. Her claim did not include dismissal as a section 15 claim (discrimination arising in consequence of disability). The first tribunal disagrees with all of Mrs Moustache’s claims and held that her dismissal was fair on capability grounds.  

She appealed the decision on the basis that the tribunal had failed to deal with her claim for discriminatory dismissal and asserting that it was clear from her witness statement that she had a disability relating to mental health. The EAT allowed her appeal and held that the tribunal was incorrect not to clarify the claims and had placed undue reliance on the agreed list of issues. The Trust appealed to the Court of Appeal.

The Court of Appeal held that a tribunal is entitled to consider claims emerging from the claim (ET1/Grounds of Claim) and the defence (ET3/Grounds of Response) (the statements of case). A failure to identify and address the claims contained in those statements of case is likely to amount to a breach of the tribunal’s core duty. However, a failure to identify a claim that does not emerge from the statements can only amount to an error of law in exceptional circumstances. Exceptional circumstances means that no reasonable tribunal could have taken such an approach. The Court of Appeal found no exceptional circumstances in this case. 

The court rejected the EAT’s submission that it should have been clear to the tribunal that the second ET1 indicated a possible disability discrimination claim, The same went for her witness statement and her closing submissions. The Court of Appeal held that it will usually be wrong to try to interpret the issues by reference to anything other than the statements of case. The tribunal would have had to adopt an inquisitorial approach and prompted the claimant to amend her claim. This would be overstepping and would have compromised the tribunal’s impartiality.