Proceedings not precluded by dismissal

Posted: 26th April 2018

Unfair dismissalLitigants who have their claims dismissed in one forum are generally precluded from pursuing the same, or very similar, claims in a second. However, as a Court of Appeal ruling showed, there are exceptions to the rule.

The case concerned a GP who had complained of unlawful discrimination, breach of contract, constructive unfair dismissal, arrears of pay and detrimental treatment for whistle-blowing at the hands of his employers. He issued Employment Tribunal (ET) proceedings but, after he withdrew them, they were formally dismissed.

He subsequently launched High Court proceedings, claiming breach of contract and that his employers had engaged in a wrongful conspiracy against him. The facts alleged in that claim were to all intents and purposes identical to those that had been relied on in the ET claim. On that basis, the High Court claim was struck out by a judge after the employers argued that it was an abuse of process.

In upholding the GP’s challenge to that ruling, the Court noted that what mattered was his intention at the time that he withdrew the ET proceedings. The mere fact of that withdrawal did not amount to a concession by him that that his claim was bound to fail.

In permitting him to press ahead with the High Court proceedings, the Court noted that he would otherwise be deprived of a potentially substantial claim without any tribunal or court having heard any evidence or argument about it.