Ionut Cosmin Onea v Contingent and Future Technologies Ltd

When concurrent Employment Tribunal and High Court proceedings raise overlapping issues, the Tribunal must decide, after weighing all relevant circumstances, which forum is the more convenient and appropriate forum for their determination. It must not require the applicant to meet a threshold test of showing a very real risk of considerable embarrassment to the High Court.

Considerable overlap in issues necessary to determine both proceedings, with a real prospect of issue estoppel, is a strong factor favouring a stay, although it is not invariably decisive. The Tribunal should ordinarily decide a stay application made to it, rather than defer the question to the High Court without a particular reason.

The claimant, a former director, shareholder and employee of the respondent, brought Employment Tribunal claims for whistleblowing detriment, automatically unfair dismissal, ordinary unfair dismissal and wrongful dismissal.

There were also two High Court proceedings: a breach of confidence claim by the respondent concerning recordings, access to IT systems and confidential information; and an unfair prejudice petition by the claimant concerning his treatment as a “Bad Leaver” and the transfer of his shares.

The Employment Tribunal refused the claimant’s application to stay the employment proceedings. The claimant appealed, contending that the Tribunal had applied the wrong test, understated the overlap between the proceedings, and wrongly left the question for the High Court.

1. Appeal allowed. Under Rule 29 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, a stay is a case-management discretion. The EAT may interfere only on established legal grounds, including an error of law, failure to consider a relevant matter, or taking an irrelevant matter into account.

2. The Tribunal failed to ask the required question: in which forum would the action most conveniently and appropriately be tried, having regard to all relevant circumstances. That inquiry, derived from Bowater, requires a balancing exercise. The Tribunal instead imposed an impermissible threshold requiring proof of a very real risk of considerable embarrassment to the High Court. This was a material error of law.

3. The Tribunal also failed to recognise the considerable overlap between the Employment Tribunal claim and each High Court claim. The proceedings required determination of common issues concerning unauthorised access to systems, recordings and confidential information, protected disclosures, the genuineness of the disciplinary process, dismissal, and the claimant’s status as a “Bad Leaver”. These were not merely background matters. If determined first by the Tribunal, they would be capable of producing issue estoppels and embarrassing the High Court.

4. Delay was a relevant secondary consideration and did not establish Ground 2. However, absent a particular reason, the Tribunal should determine a stay application made to it rather than leave the matter for a later High Court application. The Tribunal erred in doing so here.

5. Re-exercising the discretion by consent, the EAT held that the High Court was the more convenient and appropriate forum. The overlap, factual and legal complexity, extensive likely documentation, detailed High Court pleadings, substantial value, and proprietary share remedy all favoured a stay. The Employment Tribunal proceedings were stayed pending resolution of both High Court proceedings.

• Employment Appeal Tribunal: Allowed the appeal and stayed the Employment Tribunal proceedings pending the two High Court proceedings: [2023] EAT 125.
• Employment Tribunal: Employment Judge Khan refused the claimant’s stay application in a case-management order sent to the parties on 18 October 2022.