Mills v London Borough Of Brent

An Employment Tribunal may strike out as an abuse of process a substantially identical claim brought after the claimant voluntarily withdrew earlier claims at a late stage of their hearing. The absence of a prior judgment prevents reliance on estoppel under Henderson v Henderson, but does not prevent a finding of abuse of process. The Tribunal may consider the identity of the factual allegations, the close connection between the former and new respondents, the timing and circumstances of withdrawal, staleness, and the public interest in finality and proportionate use of resources.

Apparent bias is established only if a fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility of bias.

The claimant, a teacher, had withdrawn two race-discrimination claims against her school on the third day of a four-day hearing. She then brought a third claim against the local education authority, based on the same facts and including a protected-disclosure claim.

At a pre-hearing review, Employment Judge Liddington struck out the third claim as an abuse of process. The claimant appealed, alleging apparent bias, challenging the Tribunal's power to strike out a claim against a differently named respondent, and contending that a withdrawn but undismissed claim could be re-litigated.

The central issues were whether apparent bias had been shown and whether the later claim could properly be struck out as an abuse of process.

1. Appeal dismissed. The allegation of apparent bias against Employment Judge Liddington was not made out. Applying the fair-minded and informed observer test, the judge found that the claimant's allegations were unreliable and that there was no secret evidence. The claimant's representative had not asked the Employment Judge to hear oral evidence from her.
2. The Employment Judge was entitled to find that withdrawal of the first two claims had been voluntary and untainted by duress. A difficult cross-examination, advice from a representative to withdraw, and a possible costs application did not establish duress.
3. The third claim was properly struck out as an abuse of process. It was almost identical factually to the withdrawn claims. The school and the local education authority had a privity of interest, and the authority would have met any compensation awarded against the school. The claim was withdrawn only after the claimant had completed her evidence, the allegations had become stale, and allowing a fresh claim would create an unjustified second opportunity to litigate the same dispute.
4. The absence of a judgment in the earlier proceedings meant that the rule in Henderson v Henderson did not apply as an estoppel. That did not prevent an abuse-of-process strike-out.
5. Rule 18(7)(b) of the Employment Tribunal Rules 2004 did not preclude a strike-out on the basis of abuse of process. Khan v Heywood Middleton Primary Care Trust did not determine the issue, since it was not an abuse-of-process case and the withdrawal there occurred weeks before the hearing.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld Employment Judge Liddington's pre-hearing-review decision to strike out the third claim as an abuse of process.
• Employment Tribunal, Watford: Employment Judge Liddington struck out the claimant's race-discrimination and protected-disclosure claims following a pre-hearing review on 17 March 2011. The judgment and reasons were sent on 12 May 2011.