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Disability Discrimination and Unfair Dismissal
Rad Kohanzad appeared for the Respondent, Walk the Walk Family Support Service Community, in Ashley v Walk the Walk Family Support Service Community [2025] EAT 144. The appeal concerned two issues: whether an Employment Tribunal should have revisited an agreed list of issues when deciding a disability discrimination claim under section 15 of the Equality Act 2010, and whether concerns about the employer's disciplinary procedure made the claimant's dismissal unfair. The Employment Appeal Tribunal (EAT) dismissed the appeal, holding that the Tribunal was entitled to decide the case on the agreed issues and to assess the fairness of the dismissal by considering the process as a whole.
Background: disability discrimination and dismissal following disciplinary proceedings
Sandra Ashley was the founder and long-standing chief executive of a not-for-profit organisation providing support to families in crisis. Following concerns about management practices, handling of records and other alleged misconduct, the organisation investigated the issues and ultimately dismissed her in August 2019.
The claimant had dyslexia and depression. She brought claims including unfair dismissal and disability discrimination. The Employment Tribunal dismissed all her claims after a full hearing.
Two parts of the Tribunal's decision were challenged at the EAT:
Its rejection of a complaint under section 15 of the Equality Act 2010, which prohibits unfavourable treatment because of something arising in consequence of disability, subject to the statutory defence.
Its conclusion that the claimant had not been unfairly dismissed, despite concerns about the same managers being involved in the investigation and disciplinary process.
Section 15 discrimination: must a Tribunal revisit an agreed list of issues?
The first ground concerned how the claimant's section 15 complaint had been framed. The agreed list of issues identified the relevant “something” arising from disability as incapacity for work, delay in returning to work, and difficulty preparing for or attending disciplinary meetings.
The Tribunal found that the claimant was dismissed because of conduct matters, rather than because of those identified factors. On that formulation of the claim, the complaint failed.
At the EAT hearing, the claimant's counsel advanced a different argument: that the Tribunal should have recognised that the case was really about whether depression had impaired the claimant's ability to defend herself during the disciplinary process, potentially contributing to the employer's decision to dismiss her.
Rad Kohanzad argued that this was materially different from the ground of appeal originally permitted to proceed and required permission to amend. Relying on Khudados v Leggate [2005] ICR 1013, he submitted that permission should be refused, particularly because the original grounds had been settled by counsel and the proposed reformulation had not been raised at the earlier EAT preliminary hearing.
The EAT considered that it would have been open to refuse permission to amend, but decided to address the reformulated argument on its merits. It nevertheless dismissed the challenge.
Why the Tribunal did not have to reframe the discrimination claim
The EAT applied the Court of Appeal's decision in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185. That authority confirms that Employment Tribunals generally determine the issues the parties have advanced; they are not under a general duty to develop or reformulate a party's case where a different approach might be advantageous.
An agreed list of issues is a case-management tool, not a substitute for the underlying pleadings. A Tribunal will ordinarily be entitled to use it to structure the hearing. In exceptional circumstances, however, fairness may require a Tribunal to depart from an agreed list—for example, where a pleaded claim has inadvertently been omitted or where it is essential in the interests of justice to consider a claim that has not been pleaded.
The EAT concluded that this was not such an exceptional case. The claimant had been legally represented throughout: a solicitor had been involved when the list was agreed, and counsel represented her at the full merits hearing. Counsel had discussed the list at the start of the hearing but had not asked for the section 15 complaint to be reformulated. Nor had the alternative formulation been advanced in closing submissions.
Although the EAT acknowledged that section 15 claims can be difficult to frame correctly, it was not obvious that the agreed formulation was wrong or that the Tribunal had to intervene. The Tribunal had not erred by proceeding on the basis of the issues the parties had agreed.
Unfair dismissal: assessing the disciplinary process as a whole
The second ground concerned the Tribunal's criticism of the employer's disciplinary arrangements. The same managers had been involved in both investigating the allegations and deciding on dismissal, and the Tribunal had expressed concern that there was no clear separation between those stages.
The claimant argued that the procedural shortcomings should have rendered the dismissal unfair. She also contended that the employer could not rely on the offer of an independent appeal as curing the earlier problems because no appeal hearing actually took place.
The EAT rejected the challenge. Section 98(4) of the Employment Rights Act 1996 requires the Tribunal to determine whether dismissal was fair in all the circumstances; it does not impose an absolute requirement that investigation and disciplinary decisions must always be handled by different people. The ACAS Code encourages separation of those roles where practicable, but does not require it in every case.
Applying Taylor v OCS Group Ltd [2006] EWCA Civ 702, the EAT emphasised the need to assess the end-to-end process. The Tribunal was entitled to take account of the employer's subsequent efforts to provide an independent appeal, including allowing it to proceed out of time and agreeing to the claimant's requested arrangements. The claimant initially pursued arrangements for an appeal but ultimately did not respond to further correspondence or proceed to a hearing.
The EAT held that the Tribunal was entitled to assess the fairness of the process in light of those steps. The fact that the appeal hearing did not take place did not, in the circumstances, mean that the Tribunal had to disregard the employer's offer and efforts to facilitate it. The appeal on unfair dismissal therefore also failed.
Key legal points
Tribunals generally determine the case the parties have advanced. They have no general duty to reformulate a legally represented party's claim to improve its prospects.
An agreed list of issues is not immutable. A Tribunal may need to depart from it in exceptional circumstances, but the interests of justice must make that necessary.
Section 15 claims require careful identification of the relevant “something”. The claimant must establish that the unfavourable treatment was because of something arising in consequence of disability, subject to the statutory defence.
Dismissal fairness is assessed in the round. An Employment Tribunal may consider the full disciplinary process, including steps taken to offer and facilitate an internal appeal, rather than treating an earlier procedural shortcoming in isolation.
What this decision means for someone considering an appeal
The case illustrates why it is important to identify and formulate the legal issues before the Employment Tribunal hearing. Where a discrimination claim depends on the relationship between disability, a particular consequence of disability and the treatment complained of, the way that “something” is identified can be decisive. An appeal is not normally an opportunity to replace an unsuccessful formulation with a different case that could have been advanced at the hearing.
It also shows that procedural shortcomings in a disciplinary process do not automatically make a dismissal unfair. The Tribunal must apply the statutory test to the circumstances as a whole, including any appeal arrangements and what happened after dismissal.
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Case details
Case: Sandra Ashley v Walk the Walk Family Support Service Community
Neutral citation: [2025] EAT 144
Judgment date: 16 September 2025
Judge: His Honour Judge Auerbach
Case number: EA-2022-000729-RS
Outcome: Appeal dismissed
Rad Kohanzad's role: Counsel for the Respondent, instructed by Croner Group Ltd
Official judgment: Read the full EAT judgment (PDF)
