S Edey v London Borough of Lambeth & Anor

An issue estoppel applies only to an issue which was necessary to decide the earlier claim or defence. A prior finding which was not necessary to the earlier decision, including a finding relevant only to credibility, does not create an issue estoppel.

Abuse of process remains distinct from estoppel. It requires a broad merits-based assessment of the party’s conduct, all relevant facts, and the public and private interests in finality and proportionate litigation. A discrimination claim should nevertheless be struck out under rule 37 only in an obvious and clear case with no realistic prospect of success.

Further particulars cannot introduce a new complaint without an amendment, even where the claimant is unrepresented, if the pleaded claim clearly confines the complaint to different matters.

The Claimant brought post-termination claims of direct discrimination, discrimination arising from disability and victimisation against the First Respondent and a former representative, the Second Respondent. An Employment Tribunal, presided over by Employment Judge Ross, struck out parts of the claims on the basis of findings in an earlier Tribunal judgment between the Claimant and the First Respondent, and held that two allegations in further particulars were not part of the pleaded claim.

The earlier Martin judgment had dismissed claims concerning the Claimant’s employment and dismissal. It included findings about her retention of a work laptop and an earlier police matter. The appeal challenged the strike-out of laptop-related allegations, a victimisation allegation concerning a later police report, and the exclusion of further allegations concerning delayed responses to correspondence.

1. Appeal allowed in part. The appeal failed on grounds 1 and 3. It succeeded on ground 2. The order striking out allegation D12, a victimisation complaint, was revoked.

2. The Ross Tribunal erred in treating the Martin Tribunal’s laptop finding as creating an issue estoppel. The earlier Tribunal did not need to decide why the Claimant retained the laptop in order to determine the fairness of her dismissal, wrongful dismissal, discrimination, or victimisation claims. The laptop finding was therefore not a necessary ingredient of the earlier decision.

3. That error did not invalidate the strike-out of the laptop-related allegations. Read benevolently and as a whole, the Ross judgment also relied on abuse of process and lack of reasonable prospects under Employment Tribunal Rules 2013, rule 37. The Claimant’s scattergun and deflective approach to litigation, the earlier credibility findings relevant to the allegation that the Second Respondent had acted wrongly, and the public and private cost of repeated litigation could establish misuse of the Tribunal’s process. The Second Respondent had sufficient identity with the First Respondent as its representative for that reasoning also to apply to him.

4. The later police-report allegation stood differently. The earlier findings did not address what the Claimant had said about the laptop, her reaction to the 2018 police report, or why the disputed information was included in later correspondence. Without prior findings bearing on those facts or the Claimant’s credibility on them, abuse of process could not justify strike-out. The fact-sensitive caution in Anyanwu therefore had greater force.

5. The Tribunal was entitled to hold that allegations B2 and B3 were new Equality Act 2010, section 15 complaints. The ET1 had structured distinct facts under distinct statutory headings and had confined its section 15 complaint to the laptop search. The further particulars could not add response-time complaints without an amendment.

• Employment Appeal Tribunal: Allowed ground 2 and revoked the strike-out of D12; dismissed grounds 1 and 3.
• Employment Tribunal: Employment Judge Ross struck out parts of claim 8 at a preliminary hearing on 4 November 2019.
• Employment Tribunal: The earlier Martin judgment, sent to the parties on 18 September 2019, dismissed the Claimant’s claims 1 to 7 concerning employment, dismissal and the dismissal appeal.