Employment Appeal Tribunal Upholds Decision on Disability Discrimination Claim Timing
An employee's failure to clearly state a disability discrimination claim in their ET1 form proved decisive at the Employment Appeal Tribunal.
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Tribunal Dismisses Disability Discrimination Claim Due to Unclear Pleading
The Employment Appeal Tribunal (EAT) has confirmed a previous ruling, stating that an Employment Tribunal was correct not to identify a claim of discrimination arising from a disability when it was not clearly articulated in the initial claim form.
The case, Mr Besmir Pepkolaj v Barrett Steel Limited, involved an employee who was dismissed due to ill health. While the employee's submission to the Employment Tribunal (ET) mentioned his injury and ongoing health issues, he did not tick the box for disability discrimination and explicitly stated he did not have a disability.
The initial ET claim, lodged by Mr Pepkolaj himself with assistance from his partner, focused solely on unfair dismissal. The tribunal dismissed this claim as it was submitted out of time.
However, Mr Pepkolaj appealed, arguing that the tribunal should have recognised the possibility of a disability discrimination claim based on the details provided in his ET1 form, a medical report, and the respondent's mention of adjustments. He contended that had he been alerted to this possibility, he would have pursued it.
EAT's Reasoning on Claim Form Interpretation
The EAT, referencing the Court of Appeal's decision in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust, emphasised that employment tribunal proceedings are adversarial. The onus is on the parties to clearly define the claims they wish to bring.
The tribunal's duty is to address issues that emerge clearly from an objective analysis of the statements of case. While tribunals should offer assistance to unrepresented parties, this is a matter of discretion and not a general duty to proactively prompt a party to expand their case.
In this instance, the EAT found that on an objective analysis of the ET1 form, a complaint of discrimination because of something arising in consequence of disability was not pleaded. The fact that the claimant ticked "no" to having a disability further supported this conclusion.
"It was not an error of law for the Employment Tribunal not to address with the claimant 'whether his dismissal claim included a s.15 disability discrimination claim'," stated the EAT. "On an objective analysis the claim form did not include such a complaint and the Employment Judge was not obliged to investigate whether the claimant wished to bring such a complaint."
Consequently, the EAT determined there was no basis for the Employment Judge to consider an extension of time on just and equitable grounds for a claim that had not been properly pleaded. The appeal was dismissed.
This ruling underscores the importance of clearly articulating all grounds for a claim in the initial ET1 form to ensure they are considered by the tribunal.
Read the entire judgment here: Mr Besmir Pepkolaj v Barrett Steel Ltd [2026] EAT 14.pdf
