12th April, 2011

Daniel Northall acts for employer in leading EAT decision on issue estoppel and abuse of process

The EAT (His Honour Judge Hand QC presiding) has handed down its decision in Parker v Northumbrian Water UKEAT/0221/10/CEA.

The appeal in part concerned the circumstances in which a Claimant is prevented from bringing fresh claims in the Employment Tribunal which overlap (whether factually or legally) with earlier proceedings (to which cause of action and/or issue estoppel might apply), or which could have been brought in the earlier proceedings but were not (to which the rule in Henderson v Henderson might apply).

In an extended consideration of the rule in  Henderson v Henderson, the EAT concluded that Employment tribunals were best advised to adopt the 'broad merits-based' approach endorsed by Lord Bingham in the House of Lords decision of Johnson v Gore Wood [2002] 2 AC 1. If claims brought to the Tribunal could have been brought in earlier proceedings but were not, a Tribunal should ask itself whether in all circumstances the Claimant's conduct is an abuse. It should not assume it is an abuse and then ask whether the abuse is excused or justified by special circumstances. Insofar as the latter approach was adopted by the Court of Appeal in Divine-Borty v Brent London Borough Council [1998] ICR 886, the EAT concluded that Tribunals should no longer follow that decision.

The full text of the EAT’s judgment can be found HERE



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