Tribunal should have clarified litigant in person’s discrimination claim

Robin Pickard of Farore Law succeeded on behalf of his client in the EAT case of Moustache v Chelsea and Westminster NHS Foundation [2022] EAT 204, handed down on 15 June 2023. He acted through the Free Representation Unit. He successfully argued before HHJ Tucker that the ET had failed to identify and determine a section 15 discriminatory dismissal claim, which was apparent in the Claimant’s ET1. Robin’s client was dismissed on the grounds of capability following a period of more than 12 months’ long-term sick leave. The ET had only decided the case under the unfair dismissal regime in the Employment Rights Act 1996; this is a different task from analysing whether a dismissal is discriminatory because it arises in consequence of the person’s disability (here, the long-term sick absence arose in consequence of the Claimant’s mental impairment). The Respondent conceded that, if the ET had failed to identify and determine the discriminatory dismissal claim, then both the unfair and discriminatory dismissal aspects to the case should be remitted to the Tribunal for fresh consideration. 

The EAT Decision

Paragraph 29 of the EAT judgement reads as follows:

“On behalf of the Claimant it was submitted that the Claimant had pleaded all of the necessary factual ingredients to support a claim for discriminatory dismissal under s.15 EqA 2010. Whilst she failed to articulate that the dismissal itself was the product of discrimination, that was a mistake made by a litigant in person. It was submitted that it was an error not to have properly analysed and clarified that which the Claimant had said. It was submitted that the approach advocated by the Respondent was wrong and that Lists of Issues should not be slavishly adhered to.”

The EAT accepted this submission. At paragraphs 35-36, HHJ Tucker states that:

“In this case, I consider that, standing back, it was, or should have been clear to the Tribunal, and to the Respondent, that the Claimant was seeking to assert that there was a connection between a potential disability (stress and mental health problems), the impact of those conditions upon her, and her dismissal. She asserted that she had been signed off from work due to long-term sickness because of anxiety, work-related stress and panic attacks. She explained that her absence began in May 2018 and that, after a long-term sickness hearing on 31 May 2019, she received a letter stating the Respondent’s intention to dismiss her …

Those details should, in my judgement, have given the Tribunal and Respondent, an obvious indication that the dismissal concerned an asserted disability and so may have been discriminatory.”

Takeaways

The importance of clearly pleading the factual allegations and legal basis upon which a claim rests cannot be overstated. ET1s are not a document to “get the ball rolling”. Such an approach can prejudice a Claimant’s position, as the ET will not have jurisdiction to consider a claim until the pleadings are formally amended. 

However, the EAT Judgment in Moustache confirms that litigants in person do not need to cloak their claims in the correct legal language: they need to plead the relevant factual ingredients of the claim(s). The ET should proactively identify the legal basis for such claims. This is an important judgement and, at its core, shows that the ET should adopt a substance over form approach and promote access to justice. That is particularly so when dealing with litigants in person, given the significant obstacles they face in navigating the litigation process when unrepresented, and the uphill battle in having their cases fully ventilated.

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