Lynch & Ors v East Dunbartonshire Council

The doctrine of lis pendens has no separate application in Employment Tribunals. Its underlying purpose is addressed through the statutory procedural rules, including case management, stays and strike-out powers under Rule 18(7) of the 2004 Rules.

An Employment Tribunal may consider whether duplicate or oppressive proceedings are vexatious, or whether a claimant has exhausted the entitlement to the remedy sought. It must exercise the relevant procedural discretion rather than treat lis pendens as an automatic bar requiring dismissal.

The claimants brought successive equal pay claims against the respondent local authority. The first wave of claims remained pending while an issue concerning compliance with the statutory grievance procedure was unresolved. After sending fresh grievance letters, the claimants presented second wave claims covering substantially overlapping subject matter.

The Employment Tribunal dismissed the second wave claims, treating lis pendens as a separate common-law plea and concluding that dismissal was mandatory. The appeal concerned whether the doctrine was available independently of the Employment Tribunal Rules, whether the claims raised the same question, and whether the Tribunal had a discretion.

1. The appeal was upheld. The case was remitted to the same Employment Tribunal to proceed as accords.
2. The 2004 Rules contain no express provision for lis pendens. Rule 18(7), however, empowers an Employment Judge to control improper or oppressive conduct. Presenting a second claim while an identical claim is pending may be vexatious and may support a strike-out application under Rule 18(7)(b). The principles underlying lis pendens may also support a stay at a case-management hearing.
3. The doctrine was not available as a separate plea outside the statutory rules. The rules form a self-contained procedural code governing the powers of Employment Tribunals. Section 7(2) of the Employment Tribunals Act 1996 requires proceedings to be instituted in accordance with regulations, and section 7(3) contemplates regulations prescribing the procedure.
4. The observations in Bryant were obiter and concerned the Convention context and court proceedings. They did not establish the availability of common-law lis pendens in Employment Tribunals.
5. The analogy with res judicata did not justify a separate plea. The authorities showed that the principles underlying finality and protection against oppressive relitigation could be accommodated within tribunal procedure, with sensitivity to injustice and the particular tribunal context.
6. The Tribunal was entitled to regard the first and second wave claims as raising the same central issue, even though only the first wave raised the grievance-procedure issue. That question was academic once the separate plea was rejected.
7. If the common-law plea had been available, the Employment Judge would have had a discretion. The appropriate question would have been whether the later claims should be sisted as a case-management decision under Rule 10, rather than automatically dismissed.

• Employment Tribunal: dismissed the Second Wave Claims, apart from Ms Allan’s claim, on the basis that lis pendens was a competent and mandatory plea.
• Employment Appeal Tribunal: upheld the appeal and remitted the case to the same Employment Tribunal.