Dozie v Moorfields Eye Hospital: EAT on findings outside the list of issues

An employment tribunal erred in making findings on sex discrimination claims it had already concluded were not before it, but the error did not affect the outcome, the Employment Appeal Tribunal has held.

In Dozie v Moorfields Eye Hospital NHS Foundation Trust and another [2026] EAT 172, HHJ Joffe dismissed an appeal concerning a claimant's two-week engagement as an assistant information governance manager in 2018. She was placed by recruitment agency Venn Group Ltd, the second respondent, and removed from the role for reasons the tribunal found related to performance and, to a lesser extent, conduct.

Repeated preliminary hearings struggled to settle the issues. An initial list drawn up by one employment judge combined claims within the claim form with proposed amendments, including three allegations of direct sex discrimination. A later list prepared by EJ Hodgson confined the claims to those in the claim form. Under the heading "Direct discrimination", it referred to the protected characteristics of sex, disability and race, but then set out four allegations described as "direct race discrimination", with harassment pleaded in the alternative. The claimant was told she would need to apply to amend to add further claims. Her application, made on the first day of the full hearing, was refused.

On day five, the claimant asked whether sex was in issue. The tribunal concluded it was not, but stated that "as a matter of caution" it would consider the allegations in relation to both race and sex. It went on to find that none of the four allegations was related to, or because of, race or sex, and dismissed all claims.

The single ground permitted to proceed was that the tribunal had acted unfairly by deciding sex-based claims were outside the issues, and then determining them without allowing evidence or cross-examination on them. The claimant did not attend, and the judge canvassed with the respondents the arguments that might have been advanced for her.

With no authority cited by counsel, the judge drew on Coward v Phaestos Ltd [2021] EWHC 9 (Ch), holding that the principles for construing court orders also apply to lists of issues, although a list is a case management tool rather than a pleading or order. The question was how a reasonable person with knowledge of the case management history and the claim form would understand the list.

Read against that history, particularly the separate list of sex discrimination complaints identified earlier, the reference to sex under the direct discrimination heading was "just an artefact" of the drafting. The tribunal had correctly concluded that no sex-based claims were before it.

Its subsequent findings on sex were nonetheless an error, since the parties had been led to believe those claims would not be considered and had not called evidence or made submissions on them. Adjudicating claims not properly before a tribunal would be a more fundamental error, as recognised in Chapman v Simon [1994] IRLR 124 and Foster v Bon Groundwork Ltd [2012] ICR 1027. However, the judge concluded the tribunal's use of the word "consider" indicated alternative findings rather than determinations.

As appeals lie against decisions rather than reasons, applying Wolfe v North Middlesex University Hospital NHS Trust [2015] ICR 960, the error made no difference. The appeal was dismissed.

The judge questioned whether such findings might found an estoppel, but treated the point as academic given the jurisdictional obstacles to any fresh claim. She also rejected the respondents' further argument that the tribunal's positive findings on the reasons for the treatment meant further evidence could have made no difference, declining to decide materiality without full argument.

There was no appearance for the appellant. S Nicholls (instructed by DAC Beachcroft LLP) appeared for the first respondent. T Sheppard (instructed by Rradar Ltd) appeared for the second respondent.