Wirral University Teaching Hospitals NHS Foundation Trust v Moriarty

A Henderson v Henderson abuse allegation requires a broad, merits-based assessment of all the circumstances. It does not follow merely because a matter could have been raised in earlier proceedings that its later assertion is abusive.

Relevant considerations include whether the allegations were previously litigated, the clarity and procedural stage of the earlier proceedings, the litigant’s capacity to formulate the case, the risk of a party being twice vexed, and the public interest in finality and efficient litigation. Where factual allegations have never been adjudicated and the current claim must proceed to trial on the same contractual issue in any event, their inclusion will not ordinarily amount to abuse without a clear misuse of process.

The claimant, a nurse, brought a constructive unfair dismissal claim under section 95 of the Employment Rights Act 1996 after resigning in January 2022. She relied on a course of conduct following a workplace electric-shock incident.

Her earlier, unrepresented claim had been withdrawn and dismissed before case management. In the later proceedings, the Employment Tribunal struck out six allegations as barred by issue estoppel but refused to strike out four earlier factual allegations which had not formed part of the first claim.

The employer appealed, contending that the four allegations were an abuse of process under Henderson v Henderson, that the tribunal had misunderstood its case, and that its reasons were internally inconsistent.

1. Appeal dismissed. The Employment Tribunal made no error of law in refusing to strike out the four allegations as a Henderson v Henderson abuse of process.

2. The governing inquiry is a broad, merits-based assessment of whether, in all the circumstances, the later assertion misuses the tribunal’s process. The fact that allegations could have been raised in the earlier claim is relevant but is not determinative. The Tribunal correctly took account of finality, efficient use of public resources, the claimant’s prior knowledge of the allegations, and the possibility that they could have been included in her earlier narrative.

3. It was also entitled to give material weight to the contrary considerations. The four allegations had never been litigated. The first claim had been withdrawn before case management, so its legal scope and the issues it would have raised were unclear. The claimant had been acting in person and was plainly confused about how the factual narrative mapped onto legal causes of action.

4. Further, issues concerning the implied term of mutual trust and confidence would require trial in the constructive dismissal claim irrespective of the disputed allegations. Adding four unadjudicated particulars to that trial did not demonstrate unjust harassment or an impermissible risk of the employer being twice vexed.

5. The tribunal’s references to the limited allegations remaining after strike-out did not show that it had assessed the claimant’s prospects of success. Read fairly, its reasons applied the correct abuse-of-process test. Nor were the reasons inconsistent: the propositions that the allegations could have been mentioned earlier and that the earlier claim’s true scope was indeterminate addressed different matters.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the refusal to strike out four allegations as a Henderson v Henderson abuse of process.
• Employment Tribunal: struck out six particulars on issue-estoppel grounds, but refused to strike out four factual allegations which had not been litigated in the claimant’s earlier withdrawn claim.
• Earlier Employment Tribunal proceedings: the claimant’s first claim was withdrawn and subsequently dismissed before case management; no citation is stated.