London Borough of Enfield v Sivanandan

A contractual claim said to have been removed from Employment Tribunal proceedings for pursuit elsewhere must be withdrawn clearly. The claim and the reason for withdrawal must be unambiguous. An expression of future intention is insufficient. Good practice requires an order dismissing the claim on withdrawal, or an equally clear tribunal record.

A claim that remained before the tribunal and was struck out is res judicata. It cannot be revived in civil proceedings. Independently, it is an abuse of process to recast a struck-out discrimination and victimisation claim as a contractual claim where the underlying facts and available compensation are materially the same.

Ms Sivanandan had brought Employment Tribunal proceedings against the London Borough of Enfield alleging race discrimination, victimisation, unfair dismissal and breach of contract arising from her suspension and dismissal. The tribunal held that it had jurisdiction over the contractual claim, but later struck out the originating application because of her conduct of the proceedings.

She subsequently commenced Queen’s Bench proceedings for breach of contract. She alleged, principally, that her contract had continued because she had not accepted Enfield’s repudiation. Alternatively, she claimed damages for the period in which contractual grievance and disciplinary procedures could lawfully have been completed.

Master Leslie and Sir Edwin Jowitt declined to strike out the remaining contractual claim. Enfield appealed. The central issues were whether the claim had been withdrawn from the tribunal and, if so, whether the High Court proceedings nevertheless constituted an abuse of process.

1. Appeal allowed unanimously. Wall LJ, with whom Buxton and Peter Gibson LJJ agreed, set aside the orders below and struck out the Queen’s Bench proceedings under rule 3.4(2)(a) and (b) of the Civil Proceedings Rule 1998.

2. Ms Sivanandan had been dismissed on 11 December 1996. By repeatedly advancing tribunal proceedings on that basis, she had objectively accepted Enfield’s repudiation. The contract and the implied term of trust and confidence therefore did not continue after that date. Her claim for continuing salary and post-dismissal psychiatric injury could not stand. Gunton v London Borough of Richmond [1980] IRLR 321 and Boyo v London Borough of Lambeth [1995] IRLR 50 confined any contractual loss to the period for lawful termination. Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and another [2004] 3 WLR 322 did not assist because no independent pre-dismissal cause of action was pleaded.

3. The contractual claim was never withdrawn from the Employment Tribunal. The tribunal’s formal record showed the withdrawal of the unfair-dismissal claim, but its retention of jurisdiction over the contractual claim. Ms Sivanandan’s informal note disclosed, at most, an intention to litigate elsewhere. Her later conduct confirmed that she regarded the contractual claim as still before the tribunal. It was consequently struck out with the other claims and was res judicata.

4. In any event, the civil claim was an abuse of process. It depended on substantially the same facts as the tribunal claims for race discrimination and victimisation. The tribunal could have awarded uncapped compensation under the Race Relations Act 1976. The proceedings were an attempt to present a struck-out discrimination claim under the label of breach of contract. Sajid v Sussex Muslim Society [2002] IRLR 113 was distinguishable because there had been no clear, formal withdrawal for the purpose of avoiding duplicated litigation.

• Court of Appeal (Civil Division): Enfield’s appeal was allowed in [2005] EWCA Civ 10. The orders of Sir Edwin Jowitt and Master Leslie were set aside, and the Queen’s Bench proceedings were struck out.
• High Court, Queen’s Bench Division: Sir Edwin Jowitt dismissed Enfield’s appeal from Master Leslie and Ms Sivanandan’s cross-appeal. No citation was stated in the judgment.
• Master Leslie: Set aside default judgment and struck out parts of the particulars of claim, but declined to strike out the contractual proceedings in their entirety.
• Employment Tribunal and Employment Appeal Tribunal: The Employment Tribunal struck out Ms Sivanandan’s originating application on 6 September 2000. The Employment Appeal Tribunal dismissed her appeal on 23 July 2002, and permission to appeal further was refused.