The Home Office v J Oxley

A tribunal must construe an unrepresented claimant’s claim form objectively. The claimant need not identify statutory provisions or use formal language, but the pleaded facts must disclose the required elements of the complaint.

Before deciding cause of action estoppel, rule 52 of the Employment Tribunal Rules, or Henderson abuse of process, the tribunal must identify the causes of action in the earlier and later claims. An indirect discrimination claim may concern a PCP applied to all employees; it does not require that only disabled employees work the relevant pattern or that the claimant prove the mechanism by which the PCP disadvantages disabled employees.

The claimant, a Border Force Officer, brought a 2021 claim including indirect disability discrimination concerning an annualised-hours scheme and allowance. The Home Office contended that an earlier 2017 claim, which the claimant had withdrawn and which had been dismissed, prevented that complaint by cause of action estoppel, rule 52 of the Employment Tribunal Rules 2013, or abuse of process under Henderson v Henderson.

The Employment Tribunal rejected those objections. The Home Office appealed, principally challenging the tribunal’s construction of the two claim forms and its conclusion that the later claim was not precluded.

1. Appeal allowed and remitted. The Employment Tribunal’s decision was set aside because it had not properly identified and compared the complaints advanced in the 2017 and 2021 claim forms.
2. The 2021 claim included indirect disability discrimination. The Employment Judge erred by treating it as a novel form of equal pay or as direct discrimination, notwithstanding the parties’ common ground and the earlier case-management identification of the claim.
3. The 2017 claim had to be read objectively and as a litigant-in-person pleading. Disability was central rather than incidental: the disability-discrimination box was ticked, the remedy referred to disability matters, and the claimant alleged that part-time, compressed-hours, disabled staff received a lower annualised-hours rate.
4. The Employment Judge also applied an incorrect understanding of indirect discrimination. A complaint can arise from a PCP applying to all employees. It is not inconsistent with indirect discrimination that the relevant pay difference applies to all part-time compressed-hours workers, nor must the claimant show that only disabled employees work that pattern or explain the mechanism producing group disadvantage.
5. The errors prevented a lawful determination of whether the two claims involved the same cause of action, and thus whether cause of action estoppel or rule 52 applied. They also prevented a proper assessment of whether the later claim could and should have been brought earlier and whether pursuing it was abusive.
6. A differently constituted Employment Tribunal must determine those questions after obtaining the relevant contractual and annualised-hours materials, evidence of any change in circumstances, the claimant’s evidence about the 2017 claim, and any specific prejudice to the Home Office.

• Employment Appeal Tribunal: allowed the Home Office’s appeal and set aside the Employment Tribunal’s decision.
• Employment Tribunal: Employment Judge Brewer held that the 2021 annualised-hours complaint was not barred by cause of action estoppel, rule 52 of the Employment Tribunal Rules 2013, or abuse of process. The judgment and reasons were sent on 30 September 2022.
• Earlier proceedings: the claimant’s 2017 claim was withdrawn and dismissed by a judgment sent on 14 March 2018.