Erhard-Jensen Ontological/Phenomenological Initiative Limited v Daniel Rogerson

The Employment Appeal Tribunal allowed the appellant's appeal against the Employment Tribunal's conclusion that judicial proceedings immunity did not apply to the claimant's pleaded third detriment under section 47B of the Employment Rights Act 1996 (post-employment detriment for making protected disclosures). The EAT held that the ET erred by treating the detriment as merely the commencement of arbitration in Singapore rather than as the initiation of a groundless arbitration founded on the contents of the arbitration documentation.

The EAT applied established authorities (notably Lincoln, Singh and Daniels) to confirm that the core immunity extends to statements of case and other documents placed before a judicial or quasi-judicial tribunal where the later action is founded upon their contents. The tribunal further held that the fact the arbitration was seated in Singapore did not prevent the application of the immunity given the arbitration's quasi-judicial character and the public law principles of comity and the strong public policy in favour of recognition of foreign-seated arbitrations.

Background and parties:

• The claimant brought an Employment Tribunal claim under section 47B ERA 1996 for post-employment detriment, relying among other matters on the respondent having commenced arbitration in Singapore alleging breaches of a confidentiality agreement.
• The respondent pleaded judicial proceedings immunity (JPI) as a defence to the claimant's third pleaded detriment (that the respondent initiated a groundless arbitration based on false allegations).

Procedural posture:

• The ET (Employment Judge Fowell) held that JPI did not apply to the third detriment. The respondent obtained permission to appeal to the EAT (order sealed 2 January 2024) and the EAT heard the appeal.

Nature of the claim and relief sought:

• The claimant sought to proceed with a s.47B ERA 1996 claim alleging a post-employment detriment arising from a allegedly malicious, groundless arbitration commenced by the respondent; the respondent sought strike out/ dismissal of that part of the claim insofar as it was barred by JPI.

Issues framed by the court:

1. Whether the pleaded third detriment (a groundless arbitration said to be based on false allegations) fell within the established parameters of judicial proceedings immunity;
2. Whether the fact the arbitration was seated in Singapore prevented the application of JPI;
3. If the immunity required extension to apply, whether such an extension was necessary and compatible with Article 6(1) ECHR.

Court's reasoning (concise):

• The EAT emphasised that the correct question is what the claimant's pleaded cause of action was founded upon. The pleaded detriment was not merely the bringing of proceedings but the bringing of proceedings grounded on the contents of the arbitration documentation. Where a later claim is founded upon those contents, it will ordinarily fall within the core immunity (which includes witness evidence and statements of case/documents put before a tribunal).
• The EAT reviewed authorities (Lincoln; Trapp; Singh; Daniels; Darker; Heath; Hasselblad and others) and concluded that later authorities had refined, but not displaced, Devlin LJ's recognition that pleadings and initiating documents can fall within the privilege where the later claim is founded on them.
• The tribunal held that the arbitration's Singapore seat did not preclude application of JPI: the arbitration was a recognised quasi-judicial process, comity and the strong public policy favouring international arbitration supported recognition of the immunity in these circumstances, and there was no principled basis to confine the core immunity to proceedings within the United Kingdom.
• The EAT rejected the Article 6 challenge on the basis of Heath: the immunity in such cases pursues a legitimate aim and is proportionate, and the question of ECHR compatibility did not require a different outcome.

Disposition:

• The EAT allowed the appeal, substituted a finding that JPI applied to the pleaded detriment in para 16(g) of the Particulars of Claim, struck out that part of the claim and remitted the remaining issues to the ET for further determination.

Appeal allowed. The EAT held that the Employment Tribunal erred in law by failing to focus on the pleaded detriment, which alleged initiation of a groundless arbitration based on the contents of the arbitration documentation; that pleaded detriment fell within the established parameters of judicial proceedings immunity (which covers witness evidence and statements of case/documents placed before a judicial or quasi‑judicial tribunal); and the arbitration being seated in Singapore did not preclude the immunity. The relevant part of the claim is struck out and the matter is remitted to the ET for further determination of the outstanding issues.

Appeal from a judgment of the London South Employment Tribunal (Employment Judge Fowell), promulgated 21 November 2023, in which the ET held that judicial proceedings immunity did not apply to the claimant's third pleaded detriment. Permission to appeal to the EAT was given (order sealed 2 January 2024). The EAT allowed the appeal in [2024] EAT 135 and remitted remaining issues to the ET.