When a claimant is acting in person, it is the job of tribunals to help them negotiate their way through the various legal processes involved in bringing a claim. In Moustache v Chelsea and Westminster NHS Foundation Trust, the EAT held that the tribunal should have revisited the list of issues at the outset of the hearing to help the litigant in person in this case to clarify her claim.
Basic facts
Ms Moustache submitted various grievances to the trust, claiming that she was being bullied and harassed at work, causing her to feel anxious and to suffer a panic attack. As a result of this work-related stress, she went on sick leave. She then lodged tribunal proceedings for direct age and disability discrimination, as well as discrimination arising from disability under section 15 of the Equality Act 2010. However, when the trust asked for further and better particulars of her claim, she said that her disability arose from a hip replacement.
After her dismissal in May 2019 on the ground of capability, she lodged a further claim of unfair dismissal in which she referred to her pending discrimination claims. Prior to the hearing of both sets of claims, she agreed a list of issues which identified her disability as a “mobility issue”. Under a heading of “discrimination arising from disability”, she only flagged up one incident of unfavourable treatment. In other words, she made no reference to a mental impairment or any claim under section 15 regarding dismissal in the agreed list.
Tribunal decision
At the start of the hearing at which Ms Moustache was representing herself, the tribunal judge confirmed that the issues to be decided were contained in the list prepared by the trust to which she had agreed.
The tribunal found, as a matter of fact, that the trust had done all it could to help her to return to work. It, therefore, rejected her claim of unfair dismissal and dismissed her claims of age and disability discrimination as set out in the list.
Ms Moustache appealed, arguing that the tribunal should not have “slavishly” adhered to the list of issues. Although she had not set out in her claim form that the dismissal itself was the product of discrimination, the tribunal should have clarified the claims based on her various statements.
EAT decision
The EAT agreed that it was the job of tribunals to explain the relevant legal concepts to a litigant in person before identifying the issues to be considered. Although it is important to ensure an agreed list of issues, the EAT stressed that it is not a “formal and rigid” document, but rather a case management tool to facilitate “a fair and just trial of the real issues”.
In this case, Ms Moustache had made clear in her pleadings that she had been signed off from work due to anxiety, work-related stress, and panic attacks; she had identified in her claim form that she had been absent from work for a long time due to her mental health condition; and that a return to work would increase her anxiety. She had also stated in a witness statement that the deterioration she had suffered in her mental health amounted to a disability.
The EAT concluded that it should, therefore, have been clear to the tribunal and the trust that Ms Moustache was trying to establish a connection between her stress and mental health problems, the impact of those conditions on her, and her dismissal. As the tribunal had failed to revisit the list of issues at the outset of the hearing to clarify those points, it allowed the appeal and remitted her claims to the tribunal for reconsideration.