N Moustache v Chelsea and Westminster NHS Foundation Trust
[2022] EAT 204
The Home Office v J Oxley
16 April 2024
[2024] EAT 44
Employment Appeal Tribunal
A worker sued his employer twice about similar issues. The first case was dropped. The employer argued the second case shouldn't be allowed. The judge initially let the worker proceed. A higher court disagreed, saying the initial judge messed up and sent the case back for a new decision by a different judge. This was because the first judge didn't correctly understand the law and what the worker was trying to claim.
Key Facts
- •Mr Oxley (Respondent) brought an employment claim in 2021 (2021 claim) including a complaint about annualised hours.
- •The Home Office (Appellant) argued the complaint was barred by cause of action estoppel, Rule 52 of the Employment Tribunal Rules 2013, or abuse of process (Henderson v Henderson).
- •The 2021 claim was initially based on indirect disability discrimination.
- •Mr Oxley had previously brought a claim in 2017 (2017 claim) which was withdrawn and dismissed.
- •The Employment Tribunal held that Mr Oxley could proceed with the annualised hours complaint in the 2021 claim.
- •The 2017 claim form lacked clarity and contained some reference to disability discrimination and annualised hours but the main complaint related to pay and part-time compressed hours.
Legal Principles
Cause of action estoppel
Arnold v National Westminster Bank plc [1991] 2 A.C. 93 at 104D-E; Virgin Atlantic Airways Ltd v Zodiac Seats Limited [2014] AC 160
Rule 52 of the Employment Tribunal Rules 2013
Employment Tribunal Rules 2013, Rule 52
Abuse of process (Henderson v Henderson)
Henderson v Henderson; Johnson v Gore-Wood & Co [2002] 2 AC 1; Test Claimants in the FII Group Litigation v Revenue and Customs Commissioners [2022] AC 1; Moorjani & Ors v Durban Estates Ltd [2019] EWHC 1229 (TCC)
Indirect discrimination under the Equality Act 2010
Equality Act 2010, sections 19 and 39
Assessment of claim forms by Employment Tribunals
Pranczk v Hampshire CC UKEAT027219VP and King v Thales DIS UK Ltd [2024] EAT 34
Outcomes
Appeal allowed.
The Employment Tribunal erred in its assessment of cause of action estoppel, Rule 52, and Henderson v Henderson principles. It failed to properly identify the complaints in the 2017 and 2021 claims, leading to perverse conclusions.
Matter remitted to a different Employment Tribunal.
The errors made by the Employment Tribunal were fundamental, requiring a redetermination of whether the 2021 claim was precluded by the 2017 claim.