Andras Szucs v Greensquare Areaccord Ltd

The Henderson v Henderson principle may apply to matters arising after a first claim was issued but sufficiently before its final hearing for an amendment application to be made. Whether later proceedings are abusive requires a broad, merits-based assessment of all the circumstances, rather than a mechanical rule that any claim capable of earlier inclusion must be barred.

A claimant may abuse the process by withholding a claim and thereby depriving the tribunal and respondent of the opportunity to decide how both claims should be managed. This may be so even if an amendment application might have failed. The appellate tribunal will not interfere merely because it would have weighed the factors differently.

The claimant brought a first Employment Tribunal claim concerning his dismissal. Its final hearing took place in July 2022 and the claim was dismissed. In May 2022, about two months before that hearing, he learned that three later internal job applications had been unsuccessful.

He started Acas early conciliation in June 2022 and presented a second claim in September 2022. The Bristol Employment Tribunal struck out that claim as an abuse of process under the Henderson v Henderson principle. It held that he could and should have sought to amend the first claim.

The claimant appealed. The central issue was whether the Tribunal had erred in concluding that the second claim was abusive, despite the proximity of the first final hearing, the time limit for the new claims, the proposed disruption to the hearing, and the fact-sensitive nature of discrimination claims.

1. Appeal dismissed. The Employment Tribunal correctly directed itself on the Henderson v Henderson principle. The question is whether, in all the circumstances, the later proceedings misuse the tribunal process by raising a matter which could and should have been raised earlier. The principle can cover events arising after presentation of the first claim but before its final hearing, where there was sufficient time to seek amendment.

2. The judge was entitled to find that the claimant should have applied to amend. The possibility that the application might have been refused did not excuse failing to make it. An amendment application would have enabled the Tribunal, after hearing both parties, to decide whether to combine the matters, postpone the hearing, or require a separate claim.

3. The Tribunal permissibly treated as material that the claimant had known the facts underlying the second claim for two months, had himself sought a postponement of the first hearing, and that there was some overlap between the claims. On those facts, the claimant had deprived the Tribunal of the opportunity to allocate time and resources appropriately. That was capable of constituting abuse.

4. The statutory limitation period did not make the Tribunal’s conclusion erroneous. Genuine conciliation is an important consideration and will ordinarily make a strike-out on this basis rare while it continues. However, the claimant’s conciliation argument was not available on the permitted grounds of appeal.

5. The Tribunal was required to exercise caution because the second claim had not been heard on its merits. Nonetheless, the principle applies to fact-sensitive discrimination claims as to other claims and is not concerned with their merits. Issue estoppel may prevent relitigation of a particular issue, but does not itself justify preventing an entire cause of action from being advanced.

6. The Employment Appeal Tribunal could not intervene merely because it might have balanced the factors differently. No material factor had been omitted, no irrelevant factor had been relied on, and the conclusion was open to the Tribunal.

• Employment Appeal Tribunal — appeal dismissed: [2025] EAT 110.
• Employment Tribunal (Bristol) — by a reserved judgment sent on 8 June 2023, struck out the second claim as an abuse of process under the Henderson v Henderson principle. A reconsideration application was refused by a judgment sent on 31 October 2023.