Parker v Northumbrian Water Ltd

Issue estoppel prevents re-litigation of contractual issues actually decided in earlier proceedings, but does not prevent relevant facts being considered as background to a later dismissal claim.

Henderson v Henderson abuse of process requires a broad, merits-based assessment of all the circumstances. The fact that a matter could have been raised earlier is not, by itself, sufficient. Employment Tribunals should apply the approach stated by Lord Bingham in Johnson v Gore Wood, rather than a rigid cut-off or special-circumstances test.

A claim based on a protected disclosure that a miscarriage of justice has occurred is not necessarily a collateral attack on the earlier decision. The statutory requirement of a reasonable belief provides an important safeguard, and the claim should ordinarily be determined on its merits.

The appellant brought earlier proceedings concerning the contractual effect of a banked-hours scheme and the pay consequences of working designated rest days. The Employment Tribunal made declarations under Part 1 of the Employment Rights Act 1996, and the appeal against that decision was dismissed.

After his employment ended, the appellant brought further proceedings alleging, among other matters, unlawful deductions, constructive and automatically unfair dismissal, and detriments for making protected disclosures. At a pre-hearing review, the Employment Tribunal applied issue estoppel and Henderson abuse of process to restrict the claims. It also refused certain amendments on the basis that they constituted a collateral attack on the earlier decisions.

The appeal concerned the proper scope of issue estoppel, the correct approach to Henderson abuse of process, and whether the proposed protected-disclosure detriment claims could proceed.

1. The appeal succeeded in part. Issue estoppel applied to the contractual issues determined in the earlier proceedings, namely the interpretation of the terms and conditions, the applicability of collective-agreement terms, the lawfulness of the banked-hours scheme, the harmonisation exercise, and whether those matters constituted breach of the implied term of trust and confidence.

2. The estoppel did not prevent the appellant from relying on the employer’s conduct as evidence relevant to whether his resignation amounted to dismissal, including on a last-straw analysis. The same applied to the alleged dismissal for making protected disclosures. An unlawful-deductions claim was not itself barred because that claim had not been determined previously, although it could not be based on re-litigating the estopped contractual issues.

3. The Employment Tribunal had applied Henderson v Henderson abuse of process too rigidly. The correct approach was the broad, merits-based assessment described by Lord Bingham in Johnson v Gore Wood [2002] 1 AC 1. The question was whether, in all the circumstances, pursuing the later claim would misuse or abuse the process, not simply whether it could have been raised earlier or whether special circumstances existed.

4. Applying that approach, it was not abusive to permit the unlawful-deductions claims and the detriment claim based on psychiatric illness in the autumn of 2006. Permission to amend was granted. The same conclusion applied to the alleged psychiatric illness between July and September 2007 and following the dismissal of the earlier appeal.

5. The proposed claims alleging detriment for disclosing information tending to show that a miscarriage of justice had occurred were not necessarily collateral attacks on the earlier decisions. Section 43B(1)(c) of the Employment Rights Act 1996 protects a disclosure where the worker reasonably believes that it tends to show a miscarriage of justice. The Tribunal should distinguish an abusive attempt to reopen an earlier decision from a statutory detriment claim triggered by the disclosure, and determine the latter on its merits.

6. Permission to amend the ET1 to raise the relevant claims was granted.

• Employment Appeal Tribunal: allowed the appeal in part and granted permission to amend the ET1.
• Employment Tribunal: at a pre-hearing review, applied issue estoppel and Henderson abuse of process to restrict the later claims and refused certain amendments. Its refusal-to-review decision supplied additional reasoning concerning the scope of the estoppel and the alleged collateral attack.
• Earlier Employment Tribunal proceedings: made contractual declarations under Part 1 of the Employment Rights Act 1996. An appeal to the Employment Appeal Tribunal was dismissed.