James v Public Health Wales NHS Trust

A later claim is not an abuse of process merely because it could have been advanced in earlier proceedings. The tribunal must make a broad, merits-based assessment of all the circumstances, including the effect on the respondent and whether the later proceedings amount to unjust harassment.

Delay which remains within the applicable statutory limitation period is not itself relevant to that assessment. A genuine attempt to resolve workplace disputes through grievance procedures or negotiation may provide a proper reason for not litigating earlier. A tribunal must also recognise material differences between simple deduction claims and complex whistleblowing claims, and consider whether substantially the same evidence will in any event be required for claims that remain live.

The claimant had previously brought four Employment Tribunal claims concerning unlawful deductions from wages or pay statements. Most were conceded or resolved without a hearing. She did not then advance claims for detriments for protected disclosures, although she knew that she could do so.

Following her dismissal, she brought a fifth claim alleging unfair dismissal and whistleblowing detriment. Employment Judge Cadney struck out the detriment allegations preceding 20 January 2012 as an abuse of process under the Henderson principle. The claimant appealed, contending that the earlier and later claims were materially different and that the judge had misapplied the law on abuse of process.

1. Appeal allowed. The Employment Judge erred in striking out the protected-disclosure detriment allegations as an abuse of process.

2. The principle in Johnson v Gore Wood requires a broad, merits-based judgment on whether, in all the circumstances, the later claim misuses the tribunal process. The fact that a claim could have been raised earlier answers only that question. It does not establish that it should have been raised then, nor that later proceedings are abusive.

3. The judge wrongly treated delay as material. Under Stuart v Goldberg Linde, delay in bringing a second claim which is still in time is not itself relevant to abuse of process. The judge also failed properly to assess the claimant's stated reason for delaying: her attempt to resolve matters through grievances and negotiation while retaining employment. That was capable of being a proper reason.

4. The earlier wage-deduction claims and the later whistleblowing claim differed substantially in scope, evidence and complexity. Further, the respondent was likely to have to address much of the same evidence in the continuing unfair-dismissal claim. The decision contained no adequate finding that the claimant's conduct had caused unjust harassment, or that the respondent and its employees had been led to believe that the allegations would not be pursued.

5. The respondent had not discharged the burden of showing abuse. The issue was remitted to a fresh Employment Tribunal for reconsideration, with such evidence and submissions as that tribunal considered appropriate.

• Employment Appeal Tribunal: appeal allowed and the strike-out issue remitted to a fresh Employment Tribunal.
• Employment Tribunal: Employment Judge Cadney, sitting alone at Cardiff, struck out protected-disclosure detriment allegations before 20 January 2012 as an abuse of process; reasons were promulgated on 26 September 2013.