Divine-Bortey v London Borough of Brent: CA 14 May 1998

The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in Henderson.
Held: The Council’s appeal succeeded. The rule in Henderson should have been applied.
Simin Brown LJ, Swinton Thomas LJ, Potter LJ
[1998] EWCA Civ 830, [1998] EWCA Civ 831, [1998] EWCA Civ 832
Bailii, Bailii, Bailii
The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 9(1)
England and Wales
Appeal fromDivine-Bortey v London Borough of Brent EAT 18-Apr-1997
. .
CitedHenderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
CitedMunir v Jang 1989
The doctrine of issue estoppel applies also in Industrial Tribunal cases. . .
CitedKumchyk v Derby County Council EAT 1978
The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: . .
CitedDimtsu v Westminster City Council EAT 1991
The EAT considered the application of the rule in Henderson v Henderson in Employment Appeal Tribunal proceedings.
Knox J said: ‘The majority is fortified in the view expressed so far by three further considerations. First, this jurisdiction . .
CitedKing v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
CitedStrathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
CitedTalbot v Berkshire County Council CA 23-Mar-1993
In a motor accident, both driver and passenger were injured. The passenger sued the driver. The driver’s insurers, without notice to the driver, made a third party claim against the Berkshire County Council, claiming contribution as between joint . .

Cited by:
CitedAir Canada Alpha Catering Services v Basra EAT 21-Feb-2000
EAT Procedural Issues – Employment Tribunal . .
CitedBritish Airways Plc vBoyce SCS 7-Dec-2000
. .
CitedEgan v NASUWT NIIT 26-Mar-2007
The decision of the tribunal is that the claimant is entitled to pursue his complaint under Article 31 of the Trade Union and Labour Relations (Northern Ireland) Order 1995. The doctrine of estoppel per rem judicatam applies in the sense of ‘decided . .
CitedMensah v East Hertfordshire NHS Trust CA 10-Jun-1998
An industrial tribunal should be helpful to litigants to help establish clearly whether issues which had been raised on the papers were not being pursued. An employee claiming racial discrimination but not pursuing it at the tribunal was not allowed . .
CitedLawal v Northern Spirit Ltd EAT 6-Oct-1999
The applicant objected that one of the lay members of the Appeal Tribunal had, on other occasions, sat with a recorder who, as counsel, was appearing for a party in that appeal.
Held: There was no real possibility of bias from this scenario. . .
CitedLondon Borough of Lambeth and Another v Apelogun-Gabriels CA 22-Nov-2001
. .
CitedRB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .

These lists may be incomplete.
Updated: 31 December 2020; Ref: scu.144310