Akhigbe v St Edwards Home Ltd and Others: EAT 8 Mar 2019

JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
The employment judge had erred in rejecting a second claim brought by the Claimant against the same two Respondents as an earlier claim (the first claim) brought by him. The first and second claims were claims ‘relating to’ the same ‘matter’ for the purposes of the early conciliation requirement in section 18A(1) of the Employment Tribunals Act 1996. The two claims could not be said to relate to different matters.
It is a question of fact and degree in each case, where successive claims are brought by the same Claimant against the same Respondent or Respondents, whether the second claim is a claim relating to the same ‘matter’ as the first claim. The judge had not properly addressed that issue in the present case and his decision that a fresh early conciliation certificate was required before the second claim could be brought, was flawed.
He should not have rejected the second claim under Rule 12(1)(c) of the Employment Tribunal Rules of Procedure 2013. However, the error was immaterial since the judge was bound by Rule 12(1)(b) to reject the claim as an abuse of process. The second claim duplicated the first claim and sought to add to it a new race discrimination claim which could and should have been litigated, if at all, in the first claim. The judge’s decision was upheld on that different ground.


Kerr J


[2019] UKEAT 0110 – 18 – 0803




Employment Tribunal Rules of Procedure 2013, Employment Tribunals Act 1996 18A(1)


England and Wales


Updated: 30 May 2022; Ref: scu.634370