Case update
The Tribunal process:
Moustache v Chelsea and Westminster NHS Foundation Trust
In Moustache v Chelsea and Westminster Hospital NHS Foundation Trust, the Court of Appeal held that the Employment Appeal Tribunal (EAT) had incorrectly ruled that the Employment Tribunal (ET) should have addressed a claim which was not identified in the parties’ agreed list of issues. The ET was only required to consider the claims that the claimant had correctly and sufficiently identified in her claim documentation.
Background
The employee (Nicole Moustache), who worked as a senior administrator for the Chelsea and Westminster Hospital NHS Foundation Trust (CWNHS), suffered from a physical disability following medical surgery which resulted in changes to her job function. In 2017 and 2018, she raised grievances about the way she had been treated by her line manager, which were ultimately not upheld by the CWNHS. Whilst still in employment, Ms Moustache filed an ET1 claim form, indicating that she was bringing claims for age and disability discrimination. In section 8.2 of her claim form, she identified certain grievances and how these had been addressed by CWNHS. However, she failed to make clear the specific grounds for her discrimination claims (including what disability she was alleging).
Ms Moustache was subsequently dismissed in 2019 on capability grounds, following which she filed a further ET1 claim form alleging unfair dismissal (without ticking any of the relevant boxes to make a discrimination claim). The claims were consolidated and a list of issues was agreed between the parties.
The ET addressed and dismissed the listed claims. It held that the disability discrimination claims failed because five of them were out of time and none of them were made out on the evidence; and the unfair dismissal claim failed because the employer had consulted Ms Moustache and acted reasonably in dismissing her.
Ms Moustache appealed on the grounds that the ET had erred in law by failing to identify and determine her claim of disability discrimination arising out of her dismissal.
EAT
The EAT allowed the appeal and directed that the case be remitted for rehearing in the ET. It held that Ms Moustache’s disability discrimination claim should have been evident to the ET from the information that she had supplied.
The EAT noted that lists of issues are helpful as a case management tool. However, they should not preclude a fair and just trial of the real issues in any given case.
CWNHS appealed on the grounds that the EAT had erred by applying the wrong test, overstepping the boundaries of its appellate competence and taking account of inadmissible matters.
Court of Appeal
The Court of Appeal allowed the appeal. It held that the EAT’s decision should be set aside and the ET’s final order that the claims should be dismissed was to be reinstated.
The Court of Appeal noted that the parties’ agreed list of issues should have included all the claims that Ms Moustache had intended to be considered by the ET. The ET was entitled to proceed on the basis that there were no other claims for it to consider.
The Court of Appeal emphasised that the ET’s role is arbitral, not inquisitorial or investigative. Although the ET is entitled to seek clarification in relation to a statement of case, this is a matter of discretion which will rarely constitute an error of law such that the EAT can interfere. Furthermore, the ET has no general duty to take proactive steps to prompt a party to expand or modify its case where this may be to its advantage.
In relation to the parties’ agreed list of issues, the Court of Appeal held that this was a case management tool, not a pleading. As such, an ET will usually be entitled to confine its attention to the issues on the list. However, the Court of Appeal also noted that, by exception, it may be necessary in the interests of justice to depart from an agreed list.
Applied to the facts of this case, the Court of Appeal noted that Ms Moustache was an articulate and professional individual who had demonstrated an understanding of the concepts of discrimination and disability. Moreover, during the ET process Ms Moustache had agreed to a revised issues list and there was no reason to doubt that this was a free and informed decision. Therefore, applying an interpretive approach regarding the issues list and case documentation, Ms Moustache had not correctly and sufficiently submitted a pleading that her dismissal was an act of disability discrimination.
The Court of Appeal then considered the question of whether this was an exceptional case where the ET would have been acting in contravention of its duty of procedural fairness if it had not looked beyond the agreed list of issues. The Court of Appeal concluded that there was no perverse finding on the part of the ET, noting that the ET could only have considered a disability discrimination claim if it adopted an inquisitorial approach, which its duty of impartiality prevented.
Key takeaways
The Court of Appeal’s decision emphasises the importance of ensuring that the list of issues and case documentation is accurate and comprehensively addresses the matters in dispute. The ET’s role is not an inquisitorial one and it will only look beyond an agreed list of issues in exceptional circumstances where necessary in the interests of justice.