Bon Groundwork Ltd v Foster

This appeal concerned whether claims dismissed or struck out by an earlier Employment Tribunal hearing could be re‑litigated in subsequent Employment Tribunal proceedings. The Court of Appeal applied the principles of res judicata (issue estoppel) and the Henderson v Henderson abuse of process doctrine, and considered jurisdictional limits on redundancy claims under the Employment Rights Act 1996 (notably ss.135, 145(2)(a), 148 and 164) and the effect of a litigant in person. The court held that an earlier tribunal had not been empowered to make a binding finding that the dismissal was by reason of retirement because the dismissal‑related redundancy claim was not properly before that tribunal; as a result issue estoppel did not apply. The court further held that it was not an abuse of process to permit the later unfair dismissal and related claims to proceed, particularly given the claimant was a litigant in person and some related claims remained to be heard.

The claimant, a long‑serving employee, had been laid off and later given notice of dismissal said to be by reason of retirement. He initially presented an ET1 claiming redundancy on the basis of lay‑off; Employment Judge Salter heard that claim (10 August 2009) and rejected it, making an additional finding that the dismissal was by reason of retirement. The claimant then lodged fresh proceedings (ET1 presented 15 October 2009) asserting a range of dismissal‑related complaints including ordinary and automatically unfair dismissal, age‑related unfair dismissal and failure to make a guaranteed payment under Part III of the Employment Rights Act 1996. Employment Judge Seymour struck out several dismissal‑related claims as res judicata or an abuse of process but allowed the guaranteed pay claim to proceed. The claimant succeeded on appeal to the Employment Appeal Tribunal (Silber J), which held that there was no issue estoppel because the earlier tribunal had lacked jurisdiction to determine a dismissal‑related redundancy claim (the earlier claim was a lay‑off claim and was prematurely presented in relation to dismissal) and that the Henderson v Henderson abuse principle had been misapplied. The employer appealed to the Court of Appeal seeking restoration of the strike‑out. The Court of Appeal (Elias LJ, Arden LJ and Pill LJ) dismissed the employer's appeal. The court reasoned that (i) the dismissal‑related redundancy issue was not properly before the Salter tribunal and therefore any positive finding as to retirement was not a necessary ingredient of the earlier decision and did not produce issue estoppel; (ii) even if it had been before the earlier tribunal a positive finding of retirement would not estop the claimant from advancing other specific reasons for dismissal; and (iii) it was not an abuse of process to permit the later claims to proceed given the procedural context and the claimant's status as a litigant in person. The court declined to decide whether Watts v Rubery Owen remains good law.

• Nature of claim: appeal against Employment Appeal Tribunal decision concerning strike‑out and abuse/res judicata in employment tribunal proceedings; related claims included redundancy, unfair dismissal, protected disclosures, age discrimination, guaranteed pay, working time and failures to provide statutory particulars.
• Issues framed: (i) whether issue estoppel/res judicata barred the later claims because an earlier tribunal had found dismissal was by reason of retirement; (ii) whether bringing the later claims amounted to abuse of process under Henderson v Henderson / Johnson v Gore‑Wood; (iii) whether earlier tribunal had jurisdiction to determine dismissal‑related redundancy where ET1 was presented before dismissal took effect.
• Reasoning: the court found the dismissal‑related redundancy claim was not properly before the earlier tribunal (so the positive finding of retirement was not binding), jurisdictional time limits and claim framing mattered, and a broad merits‑based assessment showed no unjust harassment in permitting the later proceedings to go ahead, particularly given the litigant in person context and the existence of other issues accepted as properly before the tribunal.

This was an appeal by the employer against an Employment Appeal Tribunal decision. The Court of Appeal dismissed the employer's appeal. The court held that the earlier Employment Tribunal had not had a dismissal‑related redundancy claim properly before it and so its additional finding that the dismissal was by reason of retirement did not give rise to issue estoppel. The court also held that it was not an abuse of process to permit the later unfair dismissal and related claims to proceed, having regard to the claimant's status as a litigant in person and the procedural circumstances.

Employment Tribunal (Employment Judge Salter) heard redundancy (lay‑off) claim 10 August 2009; written reasons 4 September 2009 (rejected redundancy and made a finding that dismissal was by reason of retirement). New ET1 presented 15 October 2009; Employment Judge Seymour struck out several dismissal‑related claims as res judicata/abuse of process but allowed a guaranteed pay claim to proceed. Employment Appeal Tribunal (Silber J) allowed the claimant's appeal (UKEAT/0382/10/SM), reversing the strike‑out. The employer appealed to the Court of Appeal ([2012] EWCA Civ 252), which dismissed the appeal.