A Second Bite of the Cherry?

Close up of Cherries

2 Cherries not 2 Bites

A knotty problem in cases involving bullying and harassment at work is the extent to which bringing a claim in the Employment Tribunal may impact on any claim which could be brought in the County Court.

It may prevent the claim being brought at all (see Sheriff v Klyne Tugs [1999] EWCA Civ 1663) but even if not, will the findings made by the Tribunal be binding on the County Court?

Albeit in a slightly different context, the Court of Appeal have given some helpful guidance on these issues in Bon Groundwork v Foster [2012] EWCA Civ 252, looking at the issues of res judicata and the rule in Henderson v Henderson.

Mr Foster, who was 78, had been laid off without pay. After 2 weeks he wrote to his manager saying that the employer had no right to lay him off so he wanted his pay for the 2 weeks and to return to work. 2 days later the employer decided to dismiss him and another month later gave formal notice to that effect asserting it was on the grounds of retirement.

Before his notice expired, Mr Foster submitted an ET claim for a redundancy payment under s135 of the Employment Rights Act based on the lay off for more than 4 consecutive weeks.

The claim was rejected as Mr Foster had failed to give notice under s148 of the ERA but the ET also considered the dismissal itself and found that it was not due to redundancy but was due to retirement.

Mr Foster responded to this decision by submitting a claim for unfair dismissal (astonishingly, the first claim was heard within 3 months and only shortly after Mr Foster’s dismissal took effect). That claim was dismissed however as it was held to be res judicata or an abuse under the rule in Henderson v Henderson. The EAT disagreed and the matter came to the Court of Appeal.

In upholding the decision of the EAT, the Court of Appeal has underlined some key principles.

The basic concept of res judicata or issue estoppel is well understood to mean that where an issue has been litigated before a judicial body and determined as between the parties it may not be re-opened.

However, the parties are only bound by an issue which it was necessary for the court to determine in the earlier claim. Therefore, a finding of fact by an earlier court which was not a ‘necessary ingredient’ in the earlier cause of action will not give rise to a ‘fact estoppel’.

Further, a finding cannot be a necessary ingredient of a cause of action if the earlier court or tribunal lacked jurisdiction to decide the matter at all.

Here, the claim that the dismissal was by reason of redundancy had never been properly before the first ET and there had been no basis for assuming that it was. Consequently, the conclusion reached about the reason for dismissal had not been a conclusion that the ET had been empowered to make. Therefore, the principle of res judicata was not engaged

In terms of Henderson v Henderson, again, this is well known as authority for the proposition that parties are expected to bring forward all their possible claims at the same time and cannot bring a second action later for a different cause of action relying on the same facts.

Again though, there is a qualification and the central question in respect of Henderson abuse of process, is whether the later proceedings involved the unjust harassment of a party. That condition is not satisfied merely because a claim could have been brought in the earlier proceedings but had not been.

In the case of Mr Foster, the abuse of process finding had been linked to the erroneous assumption that a claim arising out of the dismissal had properly been before the first ET and so Mr Foster should have brought all dismissal related claims at the same time. As in fact there had been no claim arising out of the dismissal properly before the first ET, that no longer applied and so the new claim could proceed.

In the context of, say, harassment at work, this is a helpful reminder of the issues and the care required.

Even if harassment is argued in the ET, a subsequent county court claim under the Protection from Harassment Act ought not to be barred as the ET has no jurisdiction under the PHA.

It may be more difficult to deal with ‘fact estoppel’. If a finding of fact by the ET was a ‘necessary ingredient’ in the earlier cause of action it will likely give rise to ‘fact estoppel’ but, on principle, only if the cause of action is directly comparable. As the test for harassment under the PHA is different to the test for harassment under, say, the Equality Act, one may well argue the County Court has a free hand to make its own decision.


1 Comment

Filed under Cases, Dismissal, Harassment, News

One response to “A Second Bite of the Cherry?

  1. Pingback: No Second Bite of the Cherry | Chop the Knot

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