Rothschild Asset Management Limited v Ako: CA 1 Mar 2002

The applicant had, in earlier proceedings before the Employment Tribunal, withdrawn issues she had raised. She now sought to pursue them, and the respondent asserted that she was estopped from doing so, and that the matter was res judicata. The chairman, having received a letter withdrawing the case, had entered the decision without hearing from either party, or investigating any evidence. The applicant had relied upon an out of date text book, understanding that she would be able to re-apply.
Held: Cause of action estoppel applied where the list of issues in the two actions were identical. Despite the Lennon case, the court could look behind a decision to examine the circumstances in which it had been made. Employment Tribunals differed on this issue from other courts, in not making a distinction between orders dismissing case, and discontinuances. Discontinuance does not release or discharge the cause of action, and in employment tribunal cases the court could look behind the order to see if that was the case.


Lord Justice Mummery, Lord Justice Jonathan Parker, And, Lord Justice Dyson


Times 02-Apr-2002, Gazette 25-Apr-2002, [2002] EWCA Civ 236, [2002] 2 All ER 693, [2002] ICR 899, [2002] IRLR 348




Employment Tribunals (Constitution etc) Regulations 1993 13(2)(a)


England and Wales


CitedBarber v Staffordshire County Council CA 29-Jan-1996
A dismissal of a claim without consideration by the tribunal created an issue estoppel. Issue estoppel rules apply equally to Industrial Tribunal decisions as elsewhere. Redundancy claim once withdrawn on one ground could not be revived on another. . .
CitedArnold v National Westminster Bank Plc HL 1991
Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
Per incuriamSajid v Sussex Muslim Society 2002
It was not an abuse of process to seek to pursue an employment claim in the High Court where the claim begun in the tribunal was for breach of contract, unfair dismissal or redundancy, and the total amount of the claim might exceed the tribunal’s . .
CitedLennon v Birmingham City Council 2001
. .
Appeal fromAko v Rothschild Asset Management Ltd, Boston Safe Deposit and Trust Company EAT 8-Feb-2001
EAT Procedural Issues – Employment Tribunal . .

Cited by:

Appealed toAko v Rothschild Asset Management Ltd, Boston Safe Deposit and Trust Company EAT 8-Feb-2001
EAT Procedural Issues – Employment Tribunal . .
CitedVerdin v Harrods Ltd EAT 21-Dec-2005
EAT Contract of Employment – Damages for breach of contract – The Tribunal Chairman erred in law in concluding that Mrs Verdin’s breach of contract claim should be dismissed.
Rule 25 of the Employment . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Estoppel

Updated: 05 June 2022; Ref: scu.167718