The EAT Says Tribunals Don’t Re-Write Your Case — Here’s Why That Matters

Why It Matters

In Ashley v Walk the Walk Family Support Service Community [2025] EAT 144, Ms Ashley was dismissed for alleged misconduct. She said her mental-health condition affected how she took part in the disciplinary process. The Employment Tribunal dismissed her claims for unfair dismissal and disability discrimination. She appealed — and lost.

Why It Matters

The case shows two important things:

• The tribunal decides your case by looking at the agreed list of issues.
• Fairness is judged across the whole process, not just the first hearing.

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

In plain English: once both sides agree what the issues are, that list becomes the map for your case. If something is missing, the tribunal probably won't add it for you. The EAT could not have been clearer: make sure your list of issues is clear and unequivocal at the Case Management Hearing

What the EAT Said

The EAT said the list of issues had described Ms Ashley’s case in a limited way — and she was represented at the time. That meant the tribunal was right to stick with it.

“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)

Here, the employer had offered an independent appeal, even agreeing to every adjustment Ms Ashley asked for. She chose not to go ahead with it. That decision counted heavily against her.

“A fair and independent appeal may cure earlier procedural defects, even if unused, where the employee had a full opportunity to engage.” (para 63)

In other words, if your employer offers a proper appeal — and you decide not to take it — the tribunal may still see the process as fair overall.

5 Practical Takeaways for Claimants

1. Read your List of Issues carefully. Make sure it reflects exactly what you want the tribunal to decide.
2. Explain the link clearly. If your health or disability affected your conduct, say how one led to the other.
3. Use your appeal rights. Even if the disciplinary process felt unfair, an independent appeal can repair things.
4. Ask for reasonable adjustments. Employers are expected to accommodate these — and it helps your case if you ask.
5. Keep everything in writing. If you later challenge fairness, the tribunal will look at what was offered and how you responded.