Holmes v Greater Glasgow Health Board

Where a withdrawn employment tribunal claim has been dismissed under rule 25(4), a claimant cannot bring a later claim founded on the same or substantially the same cause of action. The tribunal must compare the essential substance of the written claims, including their subject matter and media concludendi, rather than merely the periods of wages claimed.

A claim for later unpaid wages is barred where it seeks to re-litigate the same underlying entitlement. A later claim may be distinct where it arises from a failure to comply with a prior declaration establishing entitlement.

The claimant, a hospital porter on long-term sick leave, had previously brought an unlawful-deduction claim seeking full sick pay. He contended that illness caused by workplace injury should not count as sick leave. That claim was settled, withdrawn and dismissed under rule 25(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

He subsequently presented a further claim for sick pay from the day after the settlement. The Employment Tribunal at Glasgow held that it lacked jurisdiction because the later claim arose from the same cause of action. The claimant appealed, maintaining that later monthly deductions constituted a new claim.

1. Appeal dismissed. The Employment Judge’s reasoning was sparse, but the only conclusion open on comparing the pleadings was that the claimant sought to re-litigate an issue disposed of by the earlier dismissal.

2. Rule 25(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 embodies the Scots-law principle of res judicata. Its public-policy purpose is to prevent repeated litigation of the same issue. The relevant inquiry is into the essential substance of the two claims, including whether their subject matter and media concludendi are the same.

3. Both claims raised the same questions: whether the claimant’s absence resulted from workplace injury caused by management failures, and whether that meant he was entitled to full wages during the absence. The fact that the second claim sought wages for a later period did not alter that identical substance. The earlier dismissal was therefore conclusive and the issue could not be litigated again.

4. Obiter, had the earlier claim proceeded to judgment and established an entitlement to payment, a fresh claim based on an employer’s subsequent failure to comply with that declared entitlement would concern a different issue and would not necessarily be barred by rule 25(4).

• Employment Appeal Tribunal: Dismissed the claimant’s appeal and upheld the Glasgow Employment Tribunal’s jurisdictional dismissal.
• Employment Tribunal, Glasgow: By judgment registered on 9 June 2011, held that it had no jurisdiction to hear the later unlawful-deduction claim.
• Earlier Employment Tribunal proceedings: The claimant’s earlier claim was settled, withdrawn and dismissed on 28 May 2010 under rule 25(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.