Moustache suggests that the identification of the issues does not involve reference to other documents. That does not mean that it would have been impermissible for the Employment Judge to look at some additional document. However, the other documents relied on by the claimant also only suggest the possibility of a claim of discrimination because of something arising in consequence of disability. The claimant would have needed to seek an amendment to bring such a complaint. As stated in Moustache an Employment Judge may consider it appropriate to explore the scope of a party's case by way of clarification, particularly in the case of an unrepresented party. But Moustache also makes it clear that whether to do so is a matter of judgment and discretion which will rarely qualify as an error of law. It probably would not have been an error of law for the Employment Judge to investigate the possibility of such a claim further, including the possibility of amendment. However, the Court of Appeal in Moustache states in clear terms that there is no general duty to take proactive steps to prompt some expansion or modification of the case advanced by a party where that might be to their advantage.
Many complaints of unfair dismissal are brought where a person is dismissed on capability grounds as a result of ill health, without an additional complaint of discrimination because of something arising in consequence of disability. Not all ill health qualifies as a disability. In claims such as this it does not cry out for the ET1 that the claim necessarily includes a complaint of discrimination because of something arising in consequence of disability.
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." 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. Accordingly, there was no basis for the Employment Judge to consider an extension of time on just and equitable grounds.
I do not have a transcript of the Preliminary Hearing. From the judgment it appears that the focus at the hearing was on the claimant's contention that time ran from the outcome of the appeal rather than the effective date of termination. It is not suggested that the claimant said at the hearing that he wished to bring a complaint of disability discrimination.
In the circumstances, on a proper application of the relevant legal principles, the appeal must fail and is dismissed.