No duty to rebuild the claim: EAT clarifies tribunal role in unpleaded disabilities

In Maltby v Chestnut Inns [2025] EAT 130, the Employment Appeal Tribunal (EAT) returned to the impact of lists of issues and complaints that are, arguably, contained within the form but not argued by the claimant. In particular, the EAT here looked at whether tribunals should step in to identify disabilities that a claimant hasn’t clearly pleaded. Mr Maltby, a chef dismissed from his job, argued disability discrimination but raised different conditions at different times — from Crohn’s disease to PTSD, asthma, obesity, and an old arm injury.

Legal Principle

The EAT reaffirmed that:

• Employment Tribunal proceedings are adversarial. The burden lies on the parties to set out their case.
• A tribunal has no general duty to proactively identify or expand a claimant’s pleaded case, even for litigants in person, unless the claim “shouts out” from the pleadings or falls within exceptional circumstances (paras [46]–[50]).
• Evidence of mental ill health does not automatically impose a higher duty on the tribunal to reconstruct a claimant’s case; the approach depends on the facts (paras [63]–[65]).
• Applications for reconsideration cannot be used to advance new arguments or evidence that could have been raised at the original hearing (paras [71]–[75]).

“The ET’s role is arbitral not inquisitorial or investigative. It must perform its functions impartially, fairly and justly… 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.” (para [42], citing Moustache)

Tribunal Approach / Framework

The EAT, applying Moustache, set out the framework for when a tribunal must identify and determine an unpleaded claim:

• Adversarial Duty – The primary responsibility rests with the parties to plead their case (para [42]).
• Objective Analysis – The tribunal must address issues that emerge clearly from the pleadings (paras [46]–[47]).
• “Shouts Out” Standard – If a claim is so obvious that it “shouts out” from the materials, the tribunal may be required to address it even if unpleaded (McLeary, Mervyn) (paras [48]–[50])

“The mere presence of references… did not make it obvious that he was relying on claw syndrome as a distinct disability.” (para [50])

• Litigants in Person – Tribunals may clarify issues, especially with unrepresented parties, but there is no uniform obligation. The correct approach depends on circumstances (paras [56]–[59]).
• Mental Ill Health – Mental health indicators do not automatically create extra duties; fairness depends on the case’s facts (paras [63]–[65]).
• Reconsideration Applications – Cannot be used to re-run or expand the case; reconsideration is limited to interests of justice and procedural mishap (paras [71]–[75]).

Cited Authorities

• Moustache v Chelsea & Westminster Hospital NHS FT [2025] EWCA Civ 185; [2025] ICR 1231 – applied (paras [40]–[43])
• Drysdale v Department of Transport [2014] EWCA Civ 1083; [2014] IRLR 892 – principles followed (para [42])
• McLeary v One Housing Group UKEAT/0124/18 – distinguished; claim “shouted out” in that case, not here (para [43])
• Mervyn v BW Controls Ltd [2020] EWCA Civ 393; [2020] ICR 1364 – distinguished (para [44])
• Mensah and Muschett v HM Prison Service [2010] EWCA Civ 25 – referenced in Moustache (para [38])
• Heal v University of Oxford [2020] ICR 1294 – considered re mental health duties (para [54])
• Rackham v NHS Professionals Ltd UKEAT/0110/15 – considered re vulnerable parties (para [54])
• Cox v Adecco [2021] ICR 1307 – cited for “rabbit in the headlights” analogy (para [52])
• Outasight VB Ltd v Brown UKEAT/0253/14 – reconsideration principles applied (para [71])

Statutory Provisions

• Equality Act 2010, s.15 (discrimination arising from disability) (para [17])
• Employment Rights Act 1996, s.100 (health and safety dismissal) – mentioned in reconsideration application (para [37])

Notes / Practical Implications

• Tribunals must avoid “rebuilding” a litigant’s 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.” (para [42])

• Litigants in person will be given assistance in clarification, but only to a fair extent.

Over-intervention risks partiality (paras [56]–[59]).

• Mental health vulnerability does not automatically change the tribunal’s obligations.

Each case turns on its facts (paras [63]–[65]).

• Reconsideration is not a “second chance”:

“In substance, having been unsuccessful at the hearing, the Claimant seeks a second chance to argue his case.” (para [39])

• Claimants must particularise disabilities clearly and provide evidence at the right stage—late introduction of impairments (here, claw syndrome) will not usually succeed on appeal.

16th Sep 2025

Michael Salter

Call 1999