EAT Practice and Procedure : Estoppel or Abuse of Process
The Claimant brought four claims, three in respect of unlawful deductions (one of which was successful, and the others compromised apparently on terms that the Claimant succeeded in full, and were then withdrawn) and one seeking pay statements (which were then provided without the need for litigation). At the time of each she could have brought a claim in respect of detriment caused by public interest disclosures she said she had made, but deliberately chose not to do so – she said, for a number of reasons which included her desire to keep her job, and resolve her differences through the grievance procedure or negotiation. She was dismissed – she made a fifth claim, that this was unfair and by reason of having made public interest disclosures. An Employment Judge regarded this as an abuse, and struck out those parts of the claim under the principle in Johnson v Gore Wood. In doing so, he appeared to place heavy emphasis on the delay in bringing the claims (which per Stuart v Linde is irrelevant in assessing abuse of this nature) and was wrong to do so; failed to ask what the effects on the employer would be (contrary to what may well have been his view, it was unlikely to free him from having to bring evidence about the issues raised in the struck-out portions of the claim, since it was likely anyway to be relevant to the dismissal claims); did not explain why he formed the view that the conduct was capable of amounting to harassment; and failed to show that he appreciated the very great difference in nature, in the circumstances, between the claims in respect of deductions on the one hand and the more complex and demanding claims involving whistleblowing on the other.
An appeal was allowed, and the case remitted.
Langstaff P J
[2014] UKEAT 0170 – 14 – 0511
Bailii
England and Wales
Employment
Updated: 24 December 2021; Ref: scu.539395