Foster v Bon Groundwork Ltd: EAT 17 Mar 2011

EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by the Respondent he submitted an ET1 alleging he had been laid off.
By a judgment of Employment Judge Salter (‘the first judgment’), it was held that the Claimant was not entitled to redundancy pay. The Claimant was dismissed because of retirement with effect from 31 July 2009.
He then submitted a new ET1 claiming, among other things, four different types of unfair dismissal, notice pay in breach of contract and a guarantee payment.
The Respondent applies to have the claims struck out as being res judicata by reason of the first judgment on alternatively as an abuse in the Henderson v Henderson sense. The application was granted save in respect of the guarantee payment. The Claimant appealed and the Respondent cross-appealed in respect of the guarantee payment.
Held –
1. Appeal allowed as:
(a) Res judicata did not apply as although the first Tribunal held that the Claimant was not dismissed by reason of redundancy, this did not create an estoppel as (i) this finding was not necessary for the decision as the claim was layoff (Arnold v National Westminster Bank [1991] 2 AC 93, 105 applied; and (ii) In any event, the first Tribunal did not have jurisdiction to deal with a redundancy as it was premature (Watts v Rubery Owen [1997] 2 All ER 1, applied);
(b) This was not a case of abuse as there was no oppressive conduct and this was not a case of the Claimant abusing the court process (Johnson v Gore-Wood [2002] 2 AC 1, 31 applied).
The cross-appeal was dismissed as the Employment Judge was entitled to conclude that it was not an abuse in the Henderson v Henderson sense to pursue this claim in the second action.
Silber J
[2011] UKEAT 0382 – 10 – 1703
England and Wales
CitedHenderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
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Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Still Good LawWatts v Rubery Owen Conveyancer Limited EAT 1977
The claimant sought a redundancy payment. The employer said that his employment had not yet finished.
Held: Kilner Brown J said: ‘The effect of these cases is that where an application is made to an Industrial Tribunal before the act of . .
MentionedPritchard-Rhodes Limited v Boon and Milton EAT 1979
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CitedO’Laoire v Jackel International Limited (No 2) CA 1991
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Held: The defendant was estopped from denying it would appoint him managing director, since . .
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Canlii (Supreme Court of Canada) Administrative law – Issue estoppel – Employee filing complaint against employer under Employment Standards Act seeking unpaid wages and commissions – Employee subsequently . .
CitedMeek v City of Birmingham District Council CA 18-Feb-1987
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Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
CitedChapman v Simon CA 1994
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CitedSouth Durham Health Authority v Unison EAT 6-Feb-1995
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The offence of causing death by driving while unlicensed, disqualified or uninsured, is committed if the driver is unlicensed, disqualified or uninsured and if the driving is a cause of death in the sense that it was ‘more than negligible or de . .
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EAT Time Limits
Practice and Procedure – 2002 Act and pre-action requirements
Unfair Dismissal – Constructive dismissal
For the purpose of the extension of the time afforded by reg. 15 of the . .
CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
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Held: It need not be an abuse of the court for a shareholder . .
CitedMorris v Wentworth-Stanley CA 4-Sep-1998
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CitedBradford and Bingley Building Society v Seddon and Hancock; Walsh and Rhodes (Trading As Hancocks (a Firm) CA 11-Mar-1999
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Updated: 06 March 2021; Ref: scu.430660