Khakimov v Amova Asset Management: EAT clarifies section 15 causation and the limits of list of issues re-formulation

The Employment Appeal Tribunal has dismissed an appeal by a former Product Management Director against his employer's decision to terminate his employment on ill-health capability grounds, in a judgement that reinforces the legal framework governing section 15 Equality Act 2010 claims and the weight accorded to agreed lists of issues in multi-day tribunal hearings.

The claimant, Saidali Khakimov, had been employed by Amova Asset Management UK Limited (formerly Nikko Asset Management Europe Limited) since 2009, transferring to the London office in 2013. He commenced long-term sickness absence in April 2019 following an internal dispute over a restructuring. His employment was terminated in January 2021 after nearly 21 months of absence, during which he had declined to provide the respondent with independent medical evidence or to cooperate with repeated proposals for an occupational health assessment. The respondent had also been unsuccessful in obtaining income protection cover for the claimant through its Group Income Protection scheme, administered by Zürich.

The claimant relied upon a diagnosis of Functional Neurological Disorder ("FND"), which the respondent conceded amounted to a disability under the Equality Act 2010.

The "something arising" dispute

The central issue on appeal concerned the claimant's section 15 claim in relation to his dismissal. The list of issues, agreed at the outset of the hearing by counsel then representing the claimant, defined the "something arising" in consequence of his disability as his difficulty thinking in multiple layers, dealing with unclear responsibilities and the uncertainty of his allocated roles.

The Employment Tribunal declined to permit a reformulation advanced in closing submissions, which sought to recast the "something arising" as the claimant's FND condition rendering him unfit for work and incapable of performing his role. The ET found that this reformulation had not been pleaded, had never been raised during the extensive case management process, and that entertaining it at such a late stage would be unjust to the respondent.

Mrs Justice Williams upheld that conclusion. Applying the Court of Appeal's analysis in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] IRLR 470, she confirmed that the onus lies on parties to identify the claims they wish to advance, and that a tribunal will usually be entitled to confine its attention to an agreed list of issues. Neither of the exceptions identified in Moustache — omission of a pleaded claim or the requirements of fundamental fairness — applied on the facts.

Causation under section 15

The EAT also rejected the contention that the ET had applied the wrong legal test in determining that the dismissal was not "because of" the agreed "something arising". Applying Pnaiser v NHS England [2016] IRLR 170, the judgement reaffirmed the distinction between the two causation questions within section 15(1)(a): the reason for the unfavourable treatment is a subjective enquiry into the alleged discriminator's conscious and unconscious thought processes, whilst whether the identified reason amounts to "something arising in consequence" of the disability is an objective question. The ET's conclusion that Mrs Marks had dismissed the claimant on capability grounds unconnected to his cognitive difficulties was a permissible finding on the evidence.

Proportionality and the Zürich reversion argument

The alternative justification finding was also upheld. The claimant had argued that the respondent acted disproportionately in failing to prompt him to revive his GIP claim with Zürich after it learnt of his FND diagnosis — a step which, if successful, might have avoided dismissal altogether. The dismissing officer, Mrs Marks, conceded in cross-examination that this had been "probably an oversight".

The EAT held that the ET was not obliged to refer expressly to this concession, and that it was entitled to weigh it against the broader factual matrix. The ET had identified nine detailed reasons for rejecting the Zürich reversion argument, which the EAT found to be thorough, cogent and amply supported by the primary findings. The high threshold for perversity was not met.

Permission to amend refused

Permission to add a further ground of appeal — based on the alleged omission of "trust and mischief" wording from the agreed list of issues — was refused. No adequate explanation was offered for raising the point less than three weeks before the hearing, and the ground was in any event not fairly arguable.

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