Ionut Cosmin Onea v Contingent and Future Technologies Ltd

The Employment Appeal Tribunal allowed an appeal against an Employment Tribunal decision refusing a stay of tribunal proceedings where concurrent High Court proceedings were pending. The EAT identified that the Employment Judge had applied the wrong legal test by effectively imposing a threshold that the claimant must show a "very real risk of considerable embarrassment to the High Court" rather than asking in which forum the dispute would be most conveniently and appropriately tried (the Bowater test). The EAT held the ET had failed to take a relevant consideration into account — namely the considerable degree of overlap between the ET claim and the two High Court proceedings (a breach of confidence claim and an unfair prejudice petition) — and had therefore erred in law. With the parties' consent the EAT re-exercised the discretion and held that the High Court was the more convenient and appropriate forum, and directed a stay of the ET claim pending resolution of the High Court proceedings.

This was an appeal from an Employment Tribunal order refusing to stay an Employment Tribunal claim brought by a co-founder and former director/employee who alleged whistleblowing detriment and automatically unfair dismissal, ordinary unfair dismissal and wrongful dismissal. The employer had commenced High Court proceedings for breach of confidence and the claimant had filed an unfair prejudice petition in the High Court concerning the treatment of his shares.

The claimant sought a stay of the ET proceedings pending determination of (i) a High Court breach of confidence claim by the respondent and (ii) the claimant's unfair prejudice petition in the High Court. The ET refused the stay. The claimant appealed to the Employment Appeal Tribunal.

Issues framed by the EAT included: in which forum would the disputes most conveniently and appropriately be tried (the Bowater PLC v Charlwood test); whether the ET had taken into account relevant factors such as the degree of overlap between proceedings and the risk of issue estoppel or embarrassment to the High Court; and whether the ET had given undue weight to delay and the suggestion that the High Court should be asked to order any stay.

The EAT held that the Employment Judge had applied an incorrect threshold approach and had failed to appreciate the substantial overlap between the ET claim and both High Court matters. The EAT concluded that the ET had therefore erred in law. On re-determination, weighing all relevant factors (complexity, volume of documents, common issues including alleged unauthorised access to IT systems and recordings, the possibility of issue estoppels, the proprietary remedy sought in relation to shares and the likely reading time and case management advantages in the High Court), the EAT decided the High Court was the more appropriate forum and ordered a stay of the ET claim until the High Court proceedings were resolved.

Appeal allowed. The Employment Tribunal erred in law by not applying the correct test (whether the dispute should be most conveniently and appropriately tried in the ET or the High Court) and by requiring the claimant to meet an inappropriate threshold about risk of embarrassment. The ET also failed to take into account the considerable overlap between the proceedings. On re-exercising the discretion the EAT found the High Court to be the appropriate forum and directed a stay of the ET claim pending resolution of the High Court breach of confidence claim and the unfair prejudice petition.

Appeal from the Employment Tribunal (case management order refusing a stay, sent 18 October 2022) to the Employment Appeal Tribunal, neutral citation [2023] EAT 125. The EAT allowed the appeal and re-exercised the discretion to grant a stay of the ET proceedings.