Ridge v HM Land Registry

An issue estoppel prevents re-litigation only of an issue that was a necessary ingredient of an earlier decision between the parties. It does not prevent a party raising a distinct issue merely because related facts were determined in earlier proceedings.

An Employment Tribunal must give adequate reasons, including a concise identification of the relevant law. A deficiency will not necessarily justify an appeal if its reasoning otherwise discloses the law applied and the result was inevitable. An employer may rely on a closely connected overpayment as a contractual set-off in Tribunal proceedings, even without a timely counterclaim, but the Tribunal must determine the disputed debt and explain its finding.

The claimant, a software engineer, was dismissed after repeated sickness absences. He brought claims of unfair dismissal, disability discrimination and breach of contract. The Exeter Employment Tribunal dismissed all claims by a judgment dated 22 June 2012.

There had been two earlier Employment Tribunal claims concerning aspects of the respondent’s attendance-management process. At the hearing of the present claims, the Tribunal ruled that issue estoppel prevented the claimant from challenging the propriety of a May 2009 final written warning. It also held that a wider challenge to an earlier warning was an abuse of process.

The claimant appealed on points of law. The central questions were whether the earlier decisions foreclosed those challenges, whether adequate reasons had been given, and whether an alleged salary overpayment could defeat the contractual claim by set-off.

1. Appeal allowed. The claims were remitted for a complete rehearing before a freshly constituted Employment Tribunal.

2. The Tribunal erred in applying issue estoppel to prevent a challenge to the May 2009 final written warning. The earlier victimisation proceedings had decided that the attendance process had been suspended rather than discontinued, and that resuming it in 2009 was not less favourable treatment. They had not decided whether imposing the final warning without a review of the earlier process was unfair or amounted to unfavourable treatment in the later unfair-dismissal and discrimination claims.

3. The erroneous ruling foreclosed a significant part of the claimant’s case. The Tribunal was required either to adhere to and explain its ruling or, if it changed its mind, to notify the parties, allow submissions on the change and explain its position. The final warning was integral to the process, so the defective ruling could not safely be severed from the remaining issues.

4. The finding of abuse of process was inadequately reasoned. The Tribunal could not dismiss the claimant’s explanation for withdrawing an earlier disability-related claim as being for reasons known only to him when he had identified the effect of Malcolm and the subsequent statutory change. It had to address that explanation and explain why, despite it, re-litigation was abusive. The respondent could renew an abuse-of-process argument on remission, although the EAT doubted its practical utility.

5. Under Employment Tribunals Act 1996, contractual jurisdiction is concurrent with that of the civil courts. Accordingly, a civil-court defence of set-off is available in Tribunal proceedings. A disputed debt may be ascertained by the Tribunal and may be set off where it is sufficiently closely connected with the employee’s claim. Here, however, the Tribunal made no finding that the alleged overpayment was due. Its conclusion on set-off was therefore unsustainable.

6. The classification of dismissal for repeated absence as capability or some other substantial reason depends on what was in the employer’s mind. The point was largely one of labelling on these facts and was left for the Tribunal on remission.

• Employment Appeal Tribunal: appeal allowed and all claims remitted for rehearing: [2014] UKEAT 0485_12_1906.
• Employment Tribunal (Exeter): judgment dated 22 June 2012 dismissed claims for unfair dismissal, disability discrimination and breach of contract.