News

28/02/2025

Court of Appeal provides guidance on the list of issues: Moustache v Chelsea and Westminster Hospital NHS Foundation Trust

News, Employment & discrimination

Moustache v Chelsea Westminster 2025 EWCA Civ 1857 (002)

The Court of Appeal handed down judgment yesterday in the case of Nicole Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185. The Court held that an ET’s failure to include a claim within an agreed list of issues will only amount to an error of law if it is perverse. Lord Justice Warby (with whom Lord Justice Dingemans and Lady Justice Elisabeth Laing agreed) gave the only reasoned judgment.

The claimant in this case had brought claims for discrimination arising from her disability and unfair dismissal. The list of issues was agreed between the parties in advance of the final hearing. That list did not include a claim for discriminatory dismissal. The claimant, a litigant in person, appealed to the EAT, arguing that the tribunal should have amended the list of issues at the final hearing to include a claim for discriminatory dismissal. The EAT agreed with her.

The Trust appealed to the Court of Appeal. The Court provided the following guidance on the nature and scope of the ET’s duty to identify and determine issues in proceedings where the parties have agreed a list of issues:

• Proceedings in the ET are adversarial. The primary onus lies on the parties to identify which claims they wish to bring and which answers they wish to advance.
• Issues raised by the parties are those which emerge clearly from an objective analysis of their statements of case. Identification of the issues does not involve reference to other documents which do not have the status of pleadings and come later.
• Where a party seeks the ET’s ruling on an issue that emerges from an objective analysis of the statements of case (and falls within its jurisdiction) the ET has a duty to address that issue. This is the core function of the tribunal.
• However, the ET’s role is arbitral not inquisitorial or investigative. It must perform its functions impartially, fairly and justly, in accordance with the overriding objective, the law, and the evidence in the case. The ET has no general duty to take pro-active steps to prompt some expansion or modification of the case advanced by a party where that might be to their advantage.
• The starting point is to consider what claims emerge from an objective analysis of the statements of case. A failure by the tribunal to identify and address those claims is liable to amount to a breach of its core duty and hence an error of law. A failure to identify and determine a claim that does not emerge from such an analysis can amount to an error of law but only in rare or exceptional circumstances.
• The rare and exceptional circumstances are those identified in Drysdale v Department of Transport [2014] EWCA Civ 1083 – those are circumstances in which a tribunal has breached its fundamental duty of procedural fairness to a litigant in that it has acted in such a way which no reasonable tribunal, properly directing itself, would have acted.

The Court determined that in the present case a claim for discriminatory dismissal did not emerge from an objective analysis of the ET1. That being so, the only basis on which the EAT could properly have allowed the employee’s appeal was that this was one of those exceptional cases set out in Drysdale. Put another way, the only remaining question was whether the ET’s conclusion – that the issues for determination were those identified in the agreed list of issues and no others – was a perverse conclusion, which no reasonable tribunal could have reached.

The ET could only have elicited a discriminatory dismissal claim by entering the adversarial arena, adopting an inquisitorial approach, and prompting an application to amend the claim. Far from being under a duty to do this, the ET’s duty of impartiality obliged it not to embark on any such process.

The appeal by the Trust was allowed.

Nadia Motraghi KC and Jack Mitchell acted for the successful Appellant and were instructed by Rachel Luddem of Capsticks LLP.

This case note was written by Daisy van den Berg, Old Square Chambers.