Agbenowossi-Koffi v Donvand Ltd (t/a Gullivers Travel Associates)

A final tribunal determination that it lacks jurisdiction to entertain a claim is binding between the parties where jurisdiction was a necessary ingredient of that claim. The claimant cannot revive the same claim in later proceedings by advancing a new route by which it might have been in time. The absence of a merits determination does not prevent cause of action estoppel.

A later claim that could have been raised earlier is not automatically an abuse of process. The tribunal must make a broad, merits-based assessment of all the circumstances, with the burden on the party alleging abuse. A tactical attempt to introduce otherwise unpursued claims solely to resurrect a claim already dismissed may amount to abuse.

The claimant brought a first Employment Tribunal claim alleging racial harassment in November 2009. The Tribunal refused leave to add two later allegations, held that it was not just and equitable to extend time for the original complaint, and dismissed it for want of jurisdiction. Her attempt to appeal that decision was unsuccessful.

She then presented a second ET1 repeating the original complaint and adding the two allegations previously proposed by amendment. Employment Judge Grewal held that the original complaint was barred by cause of action estoppel and struck out the later allegations as an abuse of process.

The claimant appealed to the Employment Appeal Tribunal. The central questions were whether the earlier jurisdictional ruling bound the parties and whether the later allegations were properly struck out under the Henderson v Henderson abuse-of-process principle.

1. Appeal dismissed. The Employment Judge made no error of law in holding that the repeated November 2009 complaint was barred by cause of action estoppel.

2. The first Tribunal had made a valid, substantive judicial determination that it lacked jurisdiction because the claim was out of time and no just and equitable extension was warranted. Jurisdiction was an essential condition of the claim. That determination was therefore final and binding between these parties.

3. The lack of any determination on the underlying harassment allegation did not assist the claimant. A jurisdictional ruling does not determine the merits, but it does determine the jurisdictional issue necessary to the claim. The claimant could not circumvent that final ruling by repeating the same claim and contending that, if presented as part of a continuing act, it might have been timely under section 68(7)(b) of the Race Relations Act 1976.

4. The later allegations were also properly struck out as an abuse of process. Following Johnson v Gore Wood [2002] 2 AC 1, the inquiry is a broad, merits-based assessment of whether, in all the circumstances, the later proceedings misuse the court's process. The fact that a matter could have been raised earlier is insufficient by itself; the respondent bears the burden, and abuse will rarely be found without unjust harassment or oppression.

5. The Employment Judge was entitled to find that the claimant had not originally advanced the later allegations as discrimination claims, but deployed them later as a tactical means of reviving the dismissed claim. That finding did not allege dishonesty, was open on the material, and was neither perverse nor procedurally unfair. Although the abuse question has a right or wrong answer rather than being discretionary, there was no basis for appellate intervention.

• Employment Appeal Tribunal: dismissed the claimant's appeal: [2013] UKEAT 0337_12_0609.
• Employment Tribunal (London Central): Employment Judge Grewal held that the repeated original complaint was barred by cause of action estoppel and struck out the further complaints as an abuse of process.
• Earlier Employment Tribunal proceedings: Regional Employment Judge Potter refused amendment and held that the original complaint was out of time; a subsequent EAT sift and rule 3(10) challenge did not succeed.