No Second Bite of the Cherry

picture of cherry with biteCan a second claim for harassment be brought after a first one has been found to be out of time even where there are new incidents which are in time? In what might seem like a rather harsh recent decision, the answer was no.

In Agbenowossi-Koffi v Donvand Ltd t/a Gullivers Travel Associates UKEAT/0337/12/DM the claimant who was of black African origin complained in November 2009 that her supervisor had racially harassed her (the original complaint). In June 2011, she started proceedings in the Employment Tribunal.

At a pre-hearing review to determine whether the claim was out of time, and if so whether to extend time, she applied to amend her claim by adding 2 further, more recent, complaints of discrimination (the new complaints).

Her application was refused as the employment judge considered that the new complaints could be the subject of a new claim which would not be out of time, but that they might be subject to an argument that they were an abuse of process.

The judge then considered the time issues in respect of the original complaint and held that it was out of time and that it was not appropriate to extend time.

Subsequently, the employee commenced new proceedings in the Tribunal (the second claim). The second claim repeated a substantial part of the first claim and included the new complaints which she asserted, combined with the original complaint, formed a continuing act of discrimination.

That claim was dismissed because, in respect of the original complaint, the second claim was barred by cause of action estoppel; and in respect of the new complaints, the second claim was barred as they could and should have been included in the first claim, and their inclusion in the second claim was an abuse of process.

On appeal that decision was upheld. It was clear that the original complaint had been the subject of a judicial determination and found to be out of time and so they could not be raised again in a second claim.

That is a straightforward and uncontroversial application of the well-established principle that you cannot bring a second claim for the same thing. It is known as ’cause of action estoppel’ (in place of the Latin tag ‘res judicata‘) because once a cause of action has been determined, you are estopped from trying to have it determined again.

The rather harsher reasoning applied to the second complaint. Here, the equally well-established rule of Henderson v Henderson (discussed here) was applied. This says that parties should normally bring all their claims in the same proceedings and to bring them separately, one after the other, can be considered an abuse of process.

However, as the judgment itself makes clear, it is not a principle of strict application and, if there is a good reason for the second claim, it may be allowed.

Here, the appeal failed because the Appeal Tribunal considered the judge at first instance had applied the law correctly, was entitled to reach the decision she did and there was no good reason to interfere with that decision.

It seems harsh to me though to disallow the claim when the claimant had tried to bring it in the earlier proceedings but not been allowed to. It is not clear why the amendment was not allowed but it is noted in the report that an appeal was rejected by the EAT (presumably because the decision was one of discretion by the Judge and there was no error of law).

The crux of the decision on the second claim was the claimant had known of the 2 more recent incidents when issuing the first claim but had not pleaded them as they were not felt to be genuinely acts of discrimination. They were added later even so, not because of any belief they had merit but in order to try to bring the earlier matters into account (by arguing they meant there had been a ‘continuing act’ of discrimination).

It was this ulterior motive (coupled perhaps by the fact that linking events 2 years apart was unlikely to amount to a continuing act) which led to the finding that their addition was an abuse of process.

The lesson to learn is that it may well be prudent to include all incidents at the outset even if some appear relatively weak or trivial. Trying to add them later may not succeed even if the incidents are in time. And if they are not allowed by amendment, there is no guarantee a fresh claim will be allowed either.

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Filed under Cases, Discrimination, Harassment

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