EAT Confirms No Duty to Reframe Claimant’s Case Beyond Agreed Issues

Ashley v Walk the Walk Family Support Service Community [2025] EAT 144 (HHJ Auerbach KC, 17 September 2025)

The claimant, a support worker dismissed for misconduct after a series of disciplinary investigations, alleged unfair dismissal and discrimination arising from disability under s.15 Equality Act 2010. Both claims failed before the ET. Her appeal to the EAT was dismissed.

Legal Issue

Whether the ET erred (1) in confining its analysis of s.15 Equality Act 2010 to the agreed list of issues, and (2) in finding the dismissal fair overall, notwithstanding overlapping roles in the investigation and decision-making process, because a fully independent appeal was offered but not pursued (paras 28–29, 59–63).

“The Tribunal was entitled to proceed on the basis of the agreed list of issues, and was not bound to go beyond it unless the interests of justice required.” (para 36)

Key Legal Principle

The EAT confirmed that tribunals are not obliged to reconstruct or expand the legal or factual basis of a claimant’s case beyond the agreed list of issues unless justice demands it (applying Moustache v Chelsea & Westminster Hospital NHS Trust [2023] EAT 186).

For unfair dismissal, the EAT reaffirmed that the assessment of overall fairness under s.98(4) ERA 1996 takes an “end-to-end” view: procedural irregularities in the initial disciplinary process may be cured or mitigated by a genuinely independent and reasonable appeal process — even if that appeal is ultimately not pursued (paras 60–63).

Tribunal Approach / Framework

1. Issues-based adjudication (paras 32–38):

1. The ET’s starting point is the agreed list of issues.
2. Departure is justified only where the interests of justice demand it, e.g., where the issue was plainly misunderstood or the party was unrepresented and disadvantaged.
3. Representation by counsel reduces the likelihood of such intervention.

2. Section 15 analysis (paras 39–48): Tribunal must identify:

1. The “something arising in consequence of” disability;
2. The treatment complained of;
3. Causation (“because of” that something).

• The ET was entitled to conclude the dismissal was for misconduct, not because of disability-related absence or participation difficulties.
   

3. Unfair dismissal and appeal process (paras 55–63):

• Apply the Burchell test (reason for dismissal, genuine belief, reasonable grounds, reasonable investigation).
• Then assess overall fairness under s.98(4) ERA 1996.
• A fair and independent appeal may cure earlier procedural defects, even if unused, where the employee had full opportunity to engage.
   “Fairness is to be judged over the whole process — not only what went wrong at first instance, but also what was reasonably offered to put it right.” (para 61)

Practical Implications

• Representatives must ensure the list of issues properly encapsulates the s.15 causal link; tribunals will not “save” poorly framed cases.
• Employers can rely on the end-to-end fairness principle: a properly offered, independent appeal (with accommodations) will weigh heavily in favour of overall reasonableness.
• ETs should avoid revisiting or reframing the case where the list of issues was agreed by counsel unless manifest injustice would result.
• Outcome letters should still be clear and accurate — opacity remains a risk factor, even if not fatal here (para 59).
   

Notes

• Representation significantly narrows the tribunal’s duty to intervene on pleadings (para 36).
• Failure to pursue a facilitated appeal can weigh heavily against a claimant on fairness (paras 62–63).
• The EAT emphasised substance over form: imperfections in letters or internal labels do not render a dismissal unfair if the process was reasonable overall (para 59)
   

Authorities Cited

• Moustache v Chelsea & Westminster Hospital NHS Trust [2023] EAT 186 — applied (paras 33–36)
• Taylor v OCS Group Ltd [2006] IRLR 613 (EAT) — applied (paras 60–61)
• British Home Stores Ltd v Burchell [1980] ICR 303 — applied (para 55)
• Serco Ltd v Wells [2016] IRLR 769 — cited by analogy on revisiting case management orders (para 38)
   

Statutory Provisions

• Equality Act 2010, s.15 (paras 39–48)
• Employment Rights Act 1996, s.98(4) (paras 55–63)

14th Oct 2025

Michael Salter

Call 1999