EAT Practice and Procedure : Striking-out/dismissal
Estoppel or abuse of process
The Claimant issued her form ET1 in which she relied on an act of racial discrimination. The primary time limit had expired. At a Pre Hearing Review she sought to add two further acts by amendment; the Employment Tribunal refused leave to amend and held that it was not just and equitable to extend time in respect of the original complaint. An appeal did not succeed.
The Claimant then issued her second ET1 in which she put forward all three acts of discrimination again. The ET held that the claim in respect of the first act was barred by issue estoppel and that, because the claim in respect of the subsequent acts had only been put forward in an attempt to serve the claim in respect of the first act by enabling the Claimant to argue a continuing act of discrimination, the putting forward of the subsequent acts was an abuse of process.
(1) The decision that there was no jurisdiction to hear the claim in respect of the first act was binding between the parties; an issue necessary to the presentation of that claim had been finally determined. The absence of any consideration of the claim’s merits did not affect the position. The ET had correctly applied the principle of res judicata/issue estoppel. Foster v Bon Groundwork  CA applied.
(2) The principles of abuse of process considered and reviewed, following Johnson v Gore-Wood  HL and subsequent decisions, including Fox v Bassetlaw  EAT. The ET had correctly applied these principles and reached a decision which was not perverse.
Jeffrey Burke QC
 UKEAT 0337 – 12 – 0609
England and Wales
Appeal from – Agbenowossi-Koffi v Donvand Ltd (T/A Gullivers Travel Associates) CA 24-Jun-2014
The claimant, of Black African origin, was publicly described as a ‘monkey in silk’ which led to her suffering depression. The company responded that her claim was out of time. . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 November 2021; Ref: scu.515405