N Moustache v Chelsea and Westminster NHS Foundation Trust
[2022] EAT 204
B King v Thales DIS UK Ltd
8 March 2024
[2024] EAT 34
Employment Appeal Tribunal
A man with mental health issues lost his discrimination case because the judge didn't understand his difficulties. A higher court said the judge was wrong and ordered a new trial that will consider the man's health issues and if he was treated fairly.
Key Facts
- •Mr. King brought a first claim for unfair dismissal (out of time and dismissed), and a second claim for sex discrimination.
- •The second claim also potentially included disability discrimination and was argued to be an abuse of process.
- •Mr. King has learning difficulties and mental health conditions.
- •The Employment Judge erred in his approach to abuse of process, leading to the dismissal of the sex discrimination claim and refusal to amend the second claim to add disability discrimination.
Legal Principles
Common law duty of fairness requires Employment Tribunals to make adjustments for vulnerable litigants to ensure a fair hearing.
Buckle v Ashford and St Peter’s Hospital NHS Trust UKEAT005420DA, Heal v University of Oxford [2020] ICR 1294, Practice Guidance (Employment tribunals: Vulnerable parties and witnesses) [2020] ICR 1002
A claim form must contain the essential factual elements of a claim; a fair reading of the pleadings is key; due allowance should be made for litigants in person, but the essential factual elements must be present.
McLeary v One Housing Group Ltd UKEAT012418LA, Pranczk v Hampshire CC UKEAT027219VP, Chandhok v Tirkey [2015] ICR 527
Abuse of process in bringing a subsequent claim arises when the claim should have been raised in earlier proceedings and doing so is abusive; a broad, merits-based assessment considering public and private interests is required; 'unjust harassment' is a relevant factor.
Henderson v Henderson (1843) 3 Hare 100, Johnson v Gore Wood [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)
Outcomes
Appeal allowed.
The Employment Judge erred in law by not undertaking a broad, merits-based assessment of the abuse of process claim, failing to consider Mr. King's vulnerability, and incorrectly concluding Mr. King intended to bring a discrimination claim in the first claim.
Decisions dismissing the sex discrimination claim and refusing to amend the second claim were set aside.
The errors in the original decision were fundamental.
Remitted to a new Employment Tribunal.
The matter requires reconsideration, taking into account all material factors, including Mr. King's vulnerability.