B King v Thales DIS UK Ltd

A claim form either contains a claim or it does not. It must be construed fairly and objectively as a whole. Allowance is made for a litigant in person, but the essential factual elements of the cause of action must appear in the form. Later information may clarify its meaning or support an amendment, but does not itself become part of the claim.

A Henderson abuse allegation requires a broad, merits-based assessment. It is insufficient that the later claim could have been raised earlier. The tribunal must decide whether it should have been raised and whether bringing it later misuses the tribunal’s process, having regard to all relevant public and private interests, including a vulnerable claimant’s circumstances.

The claimant, a former employee with learning difficulties and mental health problems, presented a first claim which was accepted only as an unfair-dismissal claim and dismissed as out of time. He later presented a second claim expressly alleging sex discrimination. He sought to contend that it also contained disability-discrimination complaints or, alternatively, to amend it to add them.

At a preliminary hearing, the Employment Tribunal held that the second claim did not contain disability discrimination, refused permission to amend, and dismissed the sex-discrimination claim as an abuse of process because discrimination claims could have been advanced in the first proceedings.

The appeal concerned the fairness of that hearing, the construction of the claim form, and whether the Tribunal had applied the correct Henderson abuse-of-process approach.

1. Appeal allowed in part. The Employment Appeal Tribunal upheld the conclusion that the second ET1 did not include a disability-discrimination claim. Objectively read, it ticked sex discrimination only and did not set out the factual basis of a disability-discrimination claim. A response to a tribunal request for further information did not become part of the ET1.
2. The preliminary hearing was not substantively unfair. There is no mandatory requirement for a hearing labelled a ground-rules hearing whenever a party is vulnerable. The earlier case-management hearing had identified the claimant’s needs, given him support from his friend, and enabled written preparation. No further specific adjustment had been sought or shown to be necessary for fairness.
3. The Tribunal nevertheless erred in its abuse-of-process analysis. A Henderson allegation is not a discretionary decision. It requires a broad, merits-based judgment on all facts and the public and private interests. The respondent must establish both that the later claim should have been raised earlier and that its later pursuit is an abuse, ordinarily involving unjust harassment. The Tribunal treated the fact that the claims could have been raised in the first proceedings as decisive and did not conduct that assessment.
4. The error was material. The claimant’s vulnerability and possible disability were significant circumstances when assessing why he had not advanced discrimination claims in the first proceedings. His explanation, including his belief that the internal grievance process had first to be completed, required consideration. The Tribunal’s contrary credibility reasoning did not answer that question.
5. The decisions that the sex-discrimination claim was abusive and that amendment to add disability discrimination should be refused were set aside. The case was remitted to a differently constituted Employment Tribunal to determine the proposed claims, the reasons for their earlier omission, the effect of vulnerability or disability, prejudice, finality, and any limitation issues.

• Employment Appeal Tribunal: Allowed the appeal in part, set aside the abuse-of-process decision and refusal of amendment, and remitted those matters to a new Employment Tribunal: [2024] EAT 34.
• Employment Tribunal: At a preliminary hearing on 2 August 2021, held that the second claim did not include disability discrimination, refused amendment, and dismissed the sex-discrimination claim as an abuse of process.
• Employment Tribunal: The claimant’s earlier unfair-dismissal claim was dismissed as presented out of time. An appeal from that decision was unsuccessful.