Owolabi v Bondcare Ltd & Ors

A later Employment Tribunal complaint may be struck out as an abuse of process where the claimant had a proper opportunity to advance it in earlier related proceedings and provides no good reason for failing to do so. The question is a broad merits-based one. The continuing nature of the alleged conduct does not excuse the omission where it had already persisted for a substantial period and could have been raised at the earlier hearing.

The claimant, a nurse, brought earlier proceedings alleging race discrimination. While those proceedings were pending, he remained suspended. He was directed at a pre-hearing review to state whether disciplinary action was alleged to have been taken on racial grounds, but supplied no relevant particulars.

After the earlier hearing, he brought a further claim alleging race-discrimination victimisation through his suspension and its duration. The Employment Judge struck out that complaint as an abuse of process under Henderson v Henderson [1843] 3 Hare 100. The claimant appealed. The first respondent cross-appealed on limitation, but only if necessary.

1. Appeal dismissed. The Employment Judge made no error of law in concluding that the victimisation complaint was an abuse of process under the rule in Henderson v Henderson [1843] 3 Hare 100.
2. The claimant had an opportunity to raise the suspension as a discrimination or victimisation complaint in the earlier proceedings. By the November 2010 hearing, the suspension had already lasted about 16 months. He had also been specifically required at the pre-hearing review to provide particulars if he alleged that disciplinary or similar action had been taken on racial grounds, and had not done so.
3. The fact that the suspension was continuing did not provide a good reason for withholding the complaint. On the contrary, its prolonged duration made it more important to raise it at the earlier hearing, when the Tribunal was already considering related matters and might have brought the suspension to an end sooner.
4. Applying the required broad merits-based assessment, the Employment Judge's reasoning could not be faulted. Since the principal appeal failed, it was unnecessary to determine Bondcare's cross-appeal concerning limitation and a just-and-equitable extension of time.

• Employment Appeal Tribunal: dismissed the claimant's appeal from the Newcastle Employment Tribunal's judgment sent out on 5 September 2012, which had struck out the victimisation complaint as an abuse of process. The respondent's cross-appeal was not determined because it was unnecessary.
• Newcastle Employment Tribunal: struck out the later victimisation complaint under Henderson v Henderson [1843] 3 Hare 100.