EAT PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
Estoppel or abuse of process
Admissibility of evidence
An Employment Judge ruled at a preliminary hearing that the Claimant could not criticise any past conduct of the Respondent prior to the date of entering into a COT3 agreement in respect of earlier proceedings. The Claimant complained that her resignation was caused by breaches related to the conduct of the Respondent before the relevant date, in that discrimination etc continued. The Respondent responded that the reason for its behaviour was the poor performance and illness of the Claimant, as to which it contended that the COT3 did not debar it from relying on events prior to the date the COT3 was signed, although maintaining that the Claimant could not rebut those contentions by making any criticism of the Respondent in respect of those events in order to explain why the Respondent’s acts had not truly related to performance or illness. On the hearing of the appeal it was argued that since the Claimant could have appealed the EJ’s interpretation of the COT3 agreement, she was estopped now from contending that at a third PHR the EJ was wrong to continue so to construe it.
Held. Estoppel should yield to fairness if and when appropriate, as it was here: the COT3 did not, as the judge thought, bar complaints about the behaviour of the employer, but rather barred claims arising specifically out of those complaints. The Claimant could not fairly be stopped raising relevant evidence, subject to careful case management orders.
Langsattf P J
[2013] UKEAT 0206 – 13 – 1605
Bailii
England and Wales
Employment
Updated: 18 November 2021; Ref: scu.514163