Fox & Ors v Bassetlaw District Council

Where a claimant withdraws proceedings in order to commence fresh proceedings, an Employment Tribunal may dismiss the withdrawn proceedings under unknown, rule 25(4), and thereby bar the fresh claim, if it raises the same or substantially the same cause of action or its pursuit would amount to an abuse of process.

The abuse question requires a broad, merits-based assessment. The tribunal must decide not only whether the later claim could have been advanced in the original proceedings, but whether it should have been. It must balance all the circumstances, the public interest in finality of litigation, and justice between the parties.

Four female employees withdrew equal-pay proceedings which had relied on specified male comparators and payments. They then issued fresh proceedings concerning call-out and standby payments, with Pest Control Officers as comparators.

The Employment Judge dismissed the withdrawn proceedings under rule 25(4) and held that the fresh proceedings were an abuse of process. The claimants appealed, contending that the different comparators and pay element meant that a different cause of action was involved and that the finding of abuse was erroneous.

The central issue was whether the claimants should have advanced the later equal-pay complaint within the original proceedings.

1. Appeal dismissed. The Employment Judge was entitled to dismiss the first proceedings following their withdrawal and to treat the second proceedings as barred by abuse of process.

2. Rule 25(4) permits dismissal where a claimant withdraws proceedings with a view to bringing a second claim raising the same or substantially the same cause of action, or where the proposed second proceedings would otherwise be abusive. The rule’s prohibition on commencing a further claim reflects that approach.

3. The Tribunal correctly applied the broad merits-based inquiry derived from Johnson v Gore Wood. The decisive question was not merely whether the later claim could have been raised in the first proceedings, but whether it should have been. That inquiry takes account of all the circumstances and balances finality of litigation against justice between the parties.

4. The authority concerning different equal-pay comparators and pay elements did not assist because it had not addressed rule 25(4), including its amended form. The Employment Judge had placed the burden of establishing abuse on the Council and had correctly understood unjust harassment as a legal description of abusive relitigation.

5. On the facts, the claimants had raised the call-out comparison in their original grievance and had the benefit of union advice. The Judge was plainly entitled to find that they could, and should, have pursued that complaint in the first proceedings. There was no perversity or other error of law. The reasons were adequate.

• Employment Appeal Tribunal: dismissed the claimants’ appeal and upheld the dismissal of the withdrawn proceedings and the finding that the fresh proceedings were an abuse of process.
• Employment Tribunal: Employment Judge Rostant, by a judgment promulgated on 29 December 2011, dismissed the first proceedings under rule 25(4) and dismissed the second proceedings as an abuse of process.