Patel v The Governing Body of Lister Community School

A claim which has been unconditionally withdrawn and dismissed is barred by res judicata, even though the tribunal did not determine its merits. The special-circumstances exception applicable to the abuse-of-process limb of the Henderson v Henderson principle does not permit the reopening of such an adjudicated claim.

The bar does not prevent earlier events being used as background or as evidence of alleged discrimination in a later period. An appellate tribunal will not interfere where the Employment Tribunal considered that evidence and reached conclusions open to it. No failure to make reasonable adjustments was established where the employer allowed written or representative participation, repeatedly adjourned meetings, and reasonably required occupational-health assessment.

The claimant, a teacher, brought claims for disability discrimination, unfair and wrongful dismissal, and holiday pay. She had previously withdrawn materially identical discrimination claims against the same school. Those earlier claims were dismissed on withdrawal under Rule 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

In the later proceedings the Employment Tribunal rejected the claims. It found that the respondent had dealt flexibly with sickness absence and grievances, had made appropriate adjustments, and had fairly dismissed the claimant for capability after prolonged absence with no realistic prospect of return.

On appeal, the claimant contended that the Tribunal had wrongly excluded pre-May 2013 evidence under Henderson v Henderson and had failed to consider adjustments appropriate to depression.

1. Appeal dismissed. The Employment Tribunal made no error of law in rejecting the claimant’s claims.
2. An unconditional withdrawal followed by dismissal under Rule 52 created an absolute res judicata bar to re-pursuing the materially identical earlier discrimination claims. That result did not depend on an adjudication on the merits. The special-circumstances exception is relevant to the wider abuse-of-process limb of Henderson v Henderson, not to reopening a claim already dismissed. No exceptional circumstances were in any event shown.
3. The bar did not prevent the claimant relying on pre-May 2013 events as background or as evidence of a pattern relevant to later discrimination. The Employment Tribunal had considered that period, made findings upon it, and directly addressed the relevant grievance and sickness-absence allegations. Its conclusions were open to it on the evidence.
4. The reasonable-adjustments ground also failed. The respondent did not require the claimant to attend face-to-face meetings. It permitted representation and written participation, repeatedly adjourned meetings, and made adjustments enabling engagement with the process. Occupational-health attendance was reasonably required to obtain medical assessment.
5. The supporting unfair-dismissal and ACAS arguments disclosed no independent error of law. The Tribunal was entitled to find that dismissal followed 17 months’ absence, no realistic prospect of return, and medical evidence that the claimant was not fit to resume work. The costs application was also refused: an appeal which fails is not thereby misconceived, and costs remain exceptional in this forum.

• Employment Appeal Tribunal: appeal dismissed: [2018] UKEAT 0289_16_0103.
• Employment Tribunal (East London): claims rejected by a Judgment promulgated on 7 December 2015; no citation is stated.
• Earlier Employment Tribunal proceedings: materially similar claims were dismissed on withdrawal under Rule 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.