Bon Groundwork Ltd v Foster

Res judicata binds parties only on an issue that was properly before the earlier court and was necessary to its decision. A tribunal’s finding on an issue outside its jurisdiction cannot create an estoppel. Even where a finding was within jurisdiction, a conclusion that dismissal was for a particular reason is not necessary if it was sufficient to decide that dismissal was not for redundancy. The Henderson v Henderson abuse of process jurisdiction requires a broad, merits-based assessment of whether later proceedings misuse the court’s process or unjustly harass a party. The fact that a claim could have been brought earlier does not, by itself, make later proceedings abusive. Particular care is required where a litigant in person is involved.

Mr Foster, an employee of Bon Groundwork Ltd, was laid off and later dismissed by reason said to be retirement. In earlier Employment Tribunal proceedings, Employment Judge Salter rejected a redundancy claim. His reasons also stated that the dismissal was by reason of retirement.

After dismissal took effect, Mr Foster brought claims including unfair dismissal, protected-disclosure and assertion-of-rights claims, age-related unfair dismissal, guaranteed pay and other statutory claims. Employment Judge Seymour struck out the first four dismissal-related claims as res judicata or an abuse of process, but allowed the guaranteed-pay claim to proceed. The Employment Appeal Tribunal, in UKEAT/0382/10/SM, allowed Mr Foster’s appeal and dismissed the employer’s cross-appeal. The central issue was whether the earlier judgment prevented, or made abusive, the later claims.

1. Appeal dismissed. The earlier claim for redundancy by reason of dismissal had never been properly before Employment Judge Salter. The ET1 focused on redundancy following lay-off; the claimant’s witness statement said he had not been dismissed; and the employer’s response also proceeded on that basis. There had been no formal amendment and the claimant had not been asked whether he wanted a dismissal-related claim determined.
2. The finding that the dismissal was by reason of retirement was therefore outside the issue properly before the tribunal. It could not engage res judicata. The principle that an unappealed express finding as to jurisdiction may bind the parties, identified in Watt v Ahsan, did not assist because Judge Salter had not determined jurisdiction after legal argument; he had merely assumed that the matter could be heard.
3. Even if a dismissal-related redundancy claim had been before the earlier tribunal, the positive finding that the reason was retirement was not necessary to reject it. It was sufficient to find that the reason was not redundancy. The earlier finding would have precluded an assertion that the dismissal was by reason of redundancy, but not necessarily an assertion of another specific reason.
4. The abuse of process conclusion was linked to the same erroneous premise and therefore could not stand. In any event, pursuing the later dismissal claims was not abusive. The assessment required by Johnson v Gore-Wood is broad and merits-based, focusing on misuse of process and unjust harassment. The claims were brought by a litigant in person, and other claims were due to be heard in any event. Preventing the general unfair-dismissal claims could cause real injustice, particularly where the earlier finding about retirement had not been central to the earlier proceedings.
5. The court did not decide whether Watts v Rubery Owen Conveyancer Limited remained good law. The employer accepted that its challenge to the guaranteed-pay claim could not succeed if the appeal on the dismissal claims failed. Lady Justice Arden and Lord Justice Pill agreed with Elias LJ’s reasons and the appeal was dismissed.

• Court of Appeal (Civil Division): in [2012] EWCA Civ 252, the appeal was dismissed.
• Employment Appeal Tribunal: Mr Foster’s appeal was allowed and the employer’s cross-appeal concerning guaranteed pay was dismissed.
• Employment Tribunal: Employment Judge Seymour struck out the dismissal-related claims as res judicata or an abuse of process, while allowing the guaranteed-pay claim to proceed. Employment Judge Salter had earlier rejected the redundancy claim.