Ochieng v Stantonbury Campus

A claim dismissed following withdrawal is ordinarily subject to an absolute bar on revival under Rules 51 and 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Claims based on matters which could, with reasonable diligence, have been advanced in earlier proceedings may also be struck out as an abuse of process under the res judicata principles restated in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] 1 AC 160.

Striking out a pleaded cause of action does not prevent relevant underlying facts from being admitted as evidence. Such facts may provide background or assist the tribunal in deciding whether surviving allegations amount to conduct extending over a period.

The claimant brought a fourth Employment Tribunal claim alleging race and disability discrimination, harassment and victimisation. Much of its factual narrative overlapped with three earlier claims. The Employment Judge struck out most of the fourth claim as vexatious, an abuse of process and/or barred by cause of action estoppel, but permitted limited allegations concerning certification renewal in 2015 to proceed.

The claimant appealed. She contended that the struck-out material was relevant background, formed part of a continuing act, or could be revived despite the withdrawal and dismissal of the disability-discrimination part of her third claim. The central issues were the effect of withdrawal and whether allegations predating the third claim could properly be advanced as fresh disability-discrimination claims.

1. Appeal dismissed. The Employment Judge was entitled to treat the dismissal on withdrawal of the disability-discrimination claim as an absolute bar to reviving the claim that had been withdrawn. Rules 51 and 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 made the consequence of withdrawal clear. The claimant established no basis for an exception.

2. The Tribunal had also made no error in striking out allegations which arose before the third claim but had not been pleaded in it. Applying the res judicata and abuse-of-process principles restated in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] 1 AC 160, a party may be barred from raising points which could with reasonable diligence, and in all the circumstances should, have been raised earlier. Repetition of existing pleadings could additionally be struck out as unnecessary and abusive.

3. The dismissal did not make the underlying factual material irrelevant or inadmissible. Subject to relevance, it could remain evidence bearing on the surviving allegations, including whether conduct amounted to a continuing discriminatory policy extending over time. It could also provide context for the certification issues in 2014 and 2015.

4. The alleged refusal in May 2015 to consider disability discrimination at a grievance meeting postdated the third claim. It could not have been an abuse of process merely because it had not been pleaded in that earlier claim. The appeal did not challenge the refusal of a proposed amendment, and the Tribunal retained the task of deciding the relevance and admissibility of evidence at the full hearing.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the striking-out decision, while clarifying that relevant factual material in the struck-out pleading could still be used evidentially.
• Employment Tribunal: At a preliminary hearing on 31 July 2015, Employment Judge Adamson struck out most of the claimant's fourth claim as vexatious, an abuse of process and/or barred by cause of action estoppel. Limited certification-related allegations were allowed to proceed.