Foster v Bon Groundwork Ltd

An issue can create an estoppel in later proceedings only where it was a necessary ingredient of the earlier cause of action and was determined by a tribunal with jurisdiction to decide it. A premature redundancy claim cannot confer jurisdiction to determine the reason for a later dismissal.

The Henderson v Henderson abuse jurisdiction requires a broad, merits-based assessment of whether the later claim misuses the court process. The fact that a claim could have been brought earlier is not, by itself, sufficient. A second hearing, without more, does not establish abuse or unjust harassment.

The claimant was laid off while still employed. Before his employment ended, he presented a claim concerning entitlement to a redundancy payment arising from lay-off. The Employment Tribunal rejected that claim and stated that he had not been dismissed by reason of redundancy.

After his dismissal took effect, the claimant brought claims for unfair dismissal, age-related procedural failures, guarantee payments and other employment rights. The Employment Tribunal struck out the unfair dismissal claims as barred by issue estoppel or as an abuse of process, but allowed the guarantee-payment claim to proceed. The claimant appealed, and the respondent cross-appealed.

1. Issue estoppel. The appeal was allowed. The earlier claim was brought under section 135(1)(b) of the Employment Rights Act 1996, concerning lay-off. Neither dismissal nor the reason for dismissal was a necessary ingredient of that cause of action. The finding that the claimant had not been dismissed by reason of redundancy therefore could not create an issue estoppel.
2. The earlier tribunal also lacked jurisdiction to determine the reason for dismissal. Under sections 145(2)(a) and 164 of the Employment Rights Act 1996, a claim for redundancy payment based on dismissal on notice was premature before the notice expired. The approach in Watts v Rubery Owen Conveyancer Ltd, followed in Pritchard-Rhodes Ltd v Boon and Milton and South Durham Health Authority v Unison, remained valid. Section 111(3) had altered the position for unfair dismissal claims, but Parliament had not altered the law governing premature redundancy claims.
3. Abuse of process. Applying Johnson v Gore-Wood, the question was whether, considering all the circumstances, the claimant was misusing the tribunal process. The mere fact that claims could have been brought in the earlier proceedings was insufficient. There was no evidence of harassment beyond the respondent having to face two proceedings, and a second hearing was required in any event for other claims. The unfair dismissal and age-related claims were therefore to proceed to a substantive hearing.
4. The respondent’s cross-appeal was dismissed. The Employment Tribunal was entitled to conclude that pursuing the guarantee-payment claim was not an abuse. The claimant’s status as a litigant in person was an additional relevant consideration, not the sole basis of the decision.

• Employment Tribunal: Employment Judge Seymour struck out the unfair dismissal claims as barred by issue estoppel or abusive under the Henderson v Henderson principle, but allowed the guarantee-payment claim to proceed.
• Employment Appeal Tribunal: Appeal allowed. The unfair dismissal and age-related claims were ordered to proceed to a substantive hearing. Cross-appeal dismissed.