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Claim which was time-barred from continuing in the Employment Tribunal may still be pursued in The High Court

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Sarah Hitchins



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16 February 2015

In Nayif v The High Commission of Brunei Darussalam [2014] EWCA Civ 1521 the Court of Appeal allowed a personal injury claim to be pursued in the High Court, even though a discrimination claim based on the same facts was time-barred in the employment tribunal.

The Court of Appeal held that the doctrine of res judicata did not apply on the basis that there had been no substantive consideration of the merits of the claim by the employment tribunal. In addition, Elias LJ commented that the doctrine of res judicata was applied so as to deny a claimant the right to have the merits of their claim determined without "good cause"; this would be a disproportionate interference with the claimant's right under Article 6 of the European Convention on Human Rights.

The appellant brought a race discrimination claim against the respondent – his former employer, the High Commission of Brunei – and alleged that he had suffered psychiatric injury as a result of the way he was treated at work over a number of years.

Such claims are required to be brought within the period of three months beginning when the act complained of occurred. The employment tribunal has discretion to consider claims brought out of time "if it considers that it is just and equitable to do so".

The appellant brought his claim to the employment tribunal after the three-month time period had expired. The employment tribunal considered whether in the circumstances it was just and equitable to hear his claim in any event. For this purpose, the employment tribunal considered documents adduced by the appellant, heard submissions as to the circumstances of his complaints, and considered his explanation as to why his claim had been brought out of time. However, having considered these factors, the employment tribunal declined to exercise its discretion to consider the appellant's claim out of time.

When considering whether to hear the appellant's claim out of time, the employment tribunal did not in any way engage with the substantive merits of the case, although the judge did observe that it was "still not clear from the claim form why the claimant says that the cause of his bullying was his race".

High Court claim

In December 2012 (over a year after he had first issued his claim in the employment tribunal) the appellant issued proceedings in negligence and breach of contract against the respondent in the High Court and sought damages for personal injury arising out of the same facts that formed the basis of the race discrimination claim in the employment tribunal. He accepted that the issues before the High Court were the same as those which had been before the emplyment tribunal.

The High Commission applied for the appellant's claim to be struck out on the basis that it arose out of the same matters as his claim in the employment tribunal, which had been dismissed. The application for strike out was allowed but, in doing so, Master Leslie noted that he felt uneasy doing so as it appeared to him that a genuine claim was to be stopped from proceeding on "narrow procedural/jurisdictional grounds".

Master Leslie gave permission for the appellant to appeal to the Court of Appeal, which remitted the decision to the Queen's Bench Division of the High Court. The High Court dismissed the appellant's appeal. The appellant appealed the High Court's decision to the Court of Appeal.

Res judicata

This case turns on the doctrine of res judicata – the principle that, generally speaking, a matter may not be re‑litigated once it has been judged on its merits. The respondent argued that the appellant should not be permitted to re-litigate matters which he had already brought before the employment tribunal.

Court of Appeal's decision

In the leading judgment, Elias LJ considered the doctrine of res judicata and the impact of Article 6 of the European Convention of Human Rights (ECHR) on the dispute.

Res judicata

Elias LJ accepted the underlying principle of the doctrine of res judicata, that "there should be finality in matters which have been litigated, or would have been but for a party being unwilling to put them to the test". However, Elias LJ could not see any justification for applying the doctrine of res judicata to prevent the appellant's claim proceeding in the High Court because there had been no actual adjudication of any issues before the employment tribunal, nor had either party consented (either expressly or by implication) to having conceded the issues in dispute by choosing not to have the matter formally determined. Rather, the only proceedings that had taken place before the employment tribunal in this matter had related to whether the appellant's claim should be allowed to proceed, notwithstanding the fact that it had been made out of time. As a result, Elias LJ found that no action had been taken before the employment tribunal that was "enough to bring the principle of res judicata into play" and allowed the appeal, thereby allowing the appellant to pursue his case in the High Court.

However, in coming to his decision, Elias LJ distinguished the situation where a claimant had issued proceedings in the employment tribunal, subsequently withdrawn them and then sought to pursue a separate claim based on the same facts in the county court (Lennon v Birmingham City Council [2011] IRLR 826). In Lennon, the claim which was brought before the county court was struck out on the basis that the doctrine of issue estoppel prevented the claimant from putting essentially the same case again to another tribunal.

Article 6 ECHR

The appellant claimed that denying him his right to bring proceedings in the High Court would constitute a breach of Article 6 as it would deny him a right of access to a competent tribunal. Elias LJ rejected this argument on the basis that the appellant would have been able to bring his claim before the employment tribunal, had he brought his claim in time.

However, Elias LJ noted that if the doctrine of res judicata was applied so as to deny a claimant the right to have the merits of their claim determined without "good cause", this would be a disproportionate interference with the claimant's Article 6 right. On this basis, Elias LJ held that it would be unjust to deny the appellant the opportunity to pursue his claim in the High Court, simply because he had brought his employment tribunal out of time. Since the law must be construed, where possible, in a way which is compatible with the ECHR, Elias LJ held that this view reinforced the conclusion he had already reached in relation to the application of the doctrine of res judicata.

The Court of Appeal's decision in this case and its application of the doctrine of res judicata relies on the fact that no substantive action had been taken before the employment tribunal which meant that res judicata did not apply. This decision is likely to be unhelpful to employers who may experience an increase in the number of employees who, having been time-barred in the employment tribunal, decide to pursue a separate case based on the same facts before the courts. In an employment context, this may not be a rare occurrence as the same facts may give rise to both a statutory claim such as discrimination in an employment tribunal, and also a breach of employment contract claim or personal injury claim brought in the High Court.

However, in this case the Court of Appeal does not appear to have considered whether the fact that the appellant had issued his claim in the employment tribunal out of time may implicitly amount to the appellant choosing not to have his claim formally determined. If this was the case then there is a chance that a court may find that res judicata does apply so as to prevent a claimant from pursuing a separate claim before the courts based on the same facts.