K Khan v The Cabinet Office

An appeal cannot succeed where the tribunal’s unchallenged alternative finding independently disposes of the claims. Arguments directed only to abuse of process or issue estoppel are then academic.

In any event, the Henderson v Henderson principle prevents a party from re-litigating matters which were, or could have been, litigated in earlier proceedings. A tribunal may find that differently formulated later complaints are barred where they concern the same parties and issues already resolved, including where prior findings have rejected any link between the alleged treatment and race or protected acts.

The claimant was employed by the respondent for three days in September 2019 before being suspended and later dismissed. His first Employment Tribunal claim, alleging race and age discrimination and victimisation, was dismissed by the tribunal chaired by Employment Judge Stout in reasons dated 25 November 2020.

In March 2021 the claimant complained to the respondent’s Public Correspondence Unit and subsequently presented a second claim. He alleged victimisation arising from the handling and return of his USB stick, and discrimination and victimisation connected with reports to the police and an internal security briefing note.

Employment Judge Burns struck out all claims in reasons dated 22 September 2022. The claimant appealed the rulings on abuse of process, issue estoppel and the USB allegation. The central questions were whether the later allegations were time-barred and whether they impermissibly sought to re-open matters determined, or capable of determination, in the first proceedings.

1. Appeal dismissed. The Employment Judge’s finding that every discrimination allegation was out of time was an additional or alternative basis for striking out those claims. That finding was not challenged in the appeal. It independently disposed of the claims, so the remaining arguments concerning abuse of process and issue estoppel were academic.

2. Were it necessary to decide those arguments, the Employment Judge had applied the correct Henderson v Henderson principle and had reached conclusions open to her. That principle prevents re-litigation of issues which were litigated, or could have been litigated, in earlier proceedings. The claimant had been aware of the reports and briefing note during the first proceedings, had an opportunity to seek amendment, and the later complaints could properly be treated as barred.

3. The Employment Judge was also entitled to reject the victimisation complaints based on correspondence with the Public Correspondence Unit. Recasting prior complaints as fresh correspondence could not re-start matters already litigated.

4. The USB complaint was likewise properly barred by issue estoppel. The first tribunal had found that the retention of the USB stick had no connection with the claimant’s race or protected acts. The parties and the material issue were the same. The later assertion that a returned USB was the wrong one did not avoid the effect of those findings.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the strike-out decision.
• Employment Tribunal, London Central: Employment Judge Burns struck out all claims in written reasons dated 22 September 2022.
• Employment Tribunal: the tribunal chaired by Employment Judge Stout dismissed the claimant’s earlier claims of race and age discrimination and victimisation in written reasons dated 25 November 2020.