EAT PRACTICE AND PROCEDURE – Estoppel or abuse of process/Amendment
The appeal was dismissed on issue estoppel. Issue estoppel applied not to the declarations made by the first Employment Tribunal, as apparently decided in the Pre Hearing Review judgment, but to the breach of contract issues that had been decided at that first hearing as stated in the Refusal to Review decision, which must be regarded as forming part of the decision under appeal.
The appeal was allowed on Henderson v Henderson abuse of process. The Employment Judge had misdirected himself by failing to consider the approach identified by Lord Bingham in Johnson v Gore Wood [2002] 1 A.C. 1 at 31A-F. Mr PJ Foster v Bon Groundwork Ltd [2011] UKEAT/0382/10/SM, which emphasises the importance of that approach, was also considered. From now on Employment Tribunals should consider the issue of Henderson abuse of process from the perspective identified by Lord Bingham in the House of Lords in Johnson v Gore Wood and not from that of the Court of Appeal in Divine-Borty v Brent London Borough Council [1998] ICR 886. Whilst the same result would be reached in many cases irrespective as to whether one or other approach was adopted, that was by no means an inevitable outcome in all cases and the instant appeal was an example of that. Having all the necessary material the Employment Appeal Tribunal was able to conclude that there was no abuse of process and grant permission for the amendments.
The appeal was also allowed on the collateral attack abuse of process decision made by the Refusal to Review decision. Parliament has provided by section 43B(1)(c) of the Employment Rights Act 1996 that if there is a reasonable belief that a miscarriage of justice has occurred then any disclosure about it may qualify for protection and the Employment Tribunal erred by failing to differentiate between that cause of action and a collateral attack abuse of process. Having all the necessary material the Employment Appeal Tribunal was able to conclude that there was no abuse of process and grant permission for the amendments.
Judges:
Hand QC J
Citations:
[2011] UKEAT 0221 – 10 – 3003
Links:
Jurisdiction:
England and Wales
Employment
Updated: 06 September 2022; Ref: scu.431875
