PRACTICE and PROCEDURE
Estoppel, Abuse of Process, Strike Out
Dismissing the first ground of appeal. The ET was considering whether to strike out a claim. It took account of conclusions reached in a previous ET judgment (in a case between the Claimant and one of the Respondents) on retention of a laptop by the Claimant. It was an error for the ET to consider that the earlier ET finding created an issue estoppel because it was not necessary finding for the claims before the earlier tribunal. However, the decision to strike out was made under rule 37 ET rules as to reasonable prospects of success and abuse of process was also considered by the ET. Approaching the ET judgment with the required benevolent reading the ET’s conclusions should be upheld. The ET finding of a ‘scattergun approach’ and ‘deflection tactics)’ by the Claimant amounted to conduct which would impact on the time and expense in defending claims, in time and resources of the ET service and cases brought by others. Applying Johnson v Gore Wood [2002] 2 AC per Lord Bingham, private and public interest is engaged. That along with facts found as arising from a rejection of the Claimant’s credibility are elements which could establish an abuse of process, leading to there being no reasonable prospect of success. This is sufficient to overcome any concerns as to the hearing of claims in Anyanwu v South Bank Students’ Union and South Bank University [2001] IRLR 305, HL The second Respondent, as a representative of the first Respondent, shows a clear identity between the first and second Respondents (applying Gleeson v. J. Wippell and Co. Ltd. [1977] 1 W.L.R. 510 per Sir Robert Megarry V.C.) strike out of the claim against the Second Respondent is equally justified.
Allowing the second ground of appeal. The ET recognised that there had been a later report to the police, however, it considered strike out was appropriate even thought this second report was not addressed in the earlier judgment. Issue estoppel could not apply as none of the matters raised by the Claimant (and permitted to proceed to appeal) had been dealt with in the earlier tribunal judgment. In terms of the abuse of process element therefore there had been no credibility findings on point at all. As such, although the other matters set out for ground 1 apply equally to this ground the importance of factual matters set out in Anyanwu is of significantly greater application.
Dismissing the third ground of appeal. The ET was entitled to consider that complaints made were limited to specific forms of discrimination. The initial complaints were set out in a structured document which referred to specific sections within the Equality Act 2010 and the further particulars applied them to other sections in that Act. The Judge was entitled to conclude that these were not complaints intended to be raised in the original particulars of claim.
Judges:
His Honour Judge Wayne Beard
Citations:
[2022] EAT 94
Links:
Jurisdiction:
England and Wales
Employment
Updated: 22 July 2022; Ref: scu.679137
