Appeal No.	 EAT/344/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 July 2000

Before
MR RECORDER BURKE QC 
MRS D M PALMER
MS B SWITZER

MR E OKOTURO	APPELLANT

TESCO STORES PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR O’ DEMPSEY
(of Counsel)
Appearing under the 
Employment Law 
Appeal Advice Scheme 	

MR RECORDER BURKE QC: 

1.	This is the preliminary hearing of Mr Okoturo’s appeal against a decision of the Employment Tribunal at London North, promulgated on 15 March 2000, the Chairman on that occasion being Miss Lewzey.  By that decision the Tribunal decided two separate issues.  First of all it decided that the Applicant’s complaint of victimisation under the Race Relations Act and his claim for holiday pay should be struck out; and, secondly, it decided that his complaint of unfair dismissal and wrongful dismissal should be stayed until proceedings then and now present in the Wandsworth County Court had been disposed of and the Applicant had paid outstanding costs orders totalling £1,750.00, those orders having been made in favour of the Defendants in the county court proceedings, the Respondents in these proceedings, namely the Applicant’s ex-employers, Tesco.  

2.	The relevant background can be dealt with very briefly and even more briefly because, so far as the first part of the Tribunal’s decision is concerned, we have been persuaded by the blandishments of Mr O’Dempsey that that part of the case should go to a full hearing of the appeal.  So far as the second part of the case is concerned, namely the proposed appeal against the stay of the Applicant’s complaints of unfair dismissal and wrongful dismissal, we are not so persuaded and we are not going to let that part go through to a full hearing.  

3.	Tesco employed Mr Okoturo at their Brook Green store.  He worked in the Produce Department.  In June 1999 a dispute arose between Mr Okoturo and his employers about holiday pay.  He had taken some holiday over a period in June which, according to his employers, was not permitted and for which therefore they refused to pay, either in full or in part, (it does not matter for present purposes which).  This perhaps minor dispute has fathered an unhappy sequence of litigation of which today’s hearing is only one part.  In July 1999 Mr Okoturo presented a complaint to the Employment Tribunal, alleging among other things, victimisation in relation to the holiday pay dispute and also claiming, of course, failure to pay the holiday pay.  

4.	Those proceedings were formally dismissed after Mr Okoturo had withdrawn them on 29 August 1999.  In the various written submissions which we have seen from Mr Okoturo, both to this Tribunal and to the Tribunal below, Mr Okoturo complained that he had withdrawn the proceedings because there had been a delay in serving them and, as a result, Tesco’s had had the opportunity and had taken advantage of the opportunity to pay at least some of the holiday pay which Mr Okoturo claimed, his claim for holiday pay not being limited only to the ten day period in June to which I have already referred.  Whether that was or was not a good reason for his withdrawing is a matter about which we make no comment.  

5.	It had not become clear from the papers, but it is clear now from what we have been told, that that originating application had in fact been served on Tesco’s, although whether they had reacted to it and in what way they had reacted to it, we simply do not know.  In November 1999 Mr Okoturo made his present claim before the Employment Tribunal on the grounds that he had been constructively and unfairly dismissed.  In other words he was asserting that Tesco’s had allegedly been in repudiatory breach of the contact of employment, which breach he had accepted as terminating the contract of employment and thus, the employment had been brought to an end.  This was in the context of the continuation of the holiday pay dispute, among other things, which had certainly led to a situation in which Mr Okoturo had, to put it neutrally, ceased to work for Tesco’s, not long before he put in that second Tribunal application. He also again claimed victimisation and the outstanding holiday pay.  In their Notice of Appearance, Tesco’s denied dismissal and contended that, among other things, Mr Okoturo simply chose to leave.  Before that Mr Okoturo had commenced proceedings in the Wandsworth County Court in which he claimed a number of reliefs including holiday pay.  Those proceedings appear to have taken a course in which they either came to an end and have been replaced by a second set of proceedings, or have continued subject to numerous cost orders against Mr Okoturo to which I have referred.  We think that the true version is that the first set of proceedings came to an end and a second set of proceedings was commenced in the County Court as well as in the Tribunal.  

6.	Because the first set of Tribunal proceedings had been dismissed as having been withdrawn, Tesco’s applied to the Tribunal to strike out Mr Okoturo’s complaints of victimisation under the Race Relations Act and an unauthorised deduction from wages, in respect of holiday pay on the grounds that those claims had been included in the first Tribunal application, which had been withdrawn.  The Tribunal in the decision which is now sought to be appealed from, accepted submissions that those proceedings should be struck out.  They did so following the principles set out in the decision of the Court of Appeal in Barber v Staffordshire County Council. (1996 IRLR 209).  Mr O’ Dempsey has today refined the grounds of appeal against this part of the Tribunal’s decision.  

7.	He puts his case in two ways.  Firstly, he says, that issue estoppel and, indeed, cause of action estoppel, which formed the basis on which the Industrial Tribunal was acting following what had been said in Barber’s case, are examples of a court acting to prevent abuse of process and that a more recent decision of the Court of Appeal, namely Sweetman v Shepherd & Others decided on 24 March 2000, of which he has helpfully provided us with a transcript, establishes that where abuse of process is relied upon, it is necessary not only to look at the formalities as to what has happened where there appears on the face of it to be re-litigation but also to look at the circumstances.  

8.	We suspect that Mr O’ Dempsey’s submissions came near to suggesting that  Sweetman v Shepherd & Others  sweeps away established law on Res Judicata and substitutes for it the proposition that all cases of Res Judicata, issue estoppel and the like are subject to general discretion.  That would be a novel proposition.  On the other hand, it does seem to us that it is arguable in the circumstances of this case that, despite what is said in Barber, the Tribunal should not have struck out the Applicant’s claims without investigating the factual circumstances and reasons as to why the first claim was withdrawn and thereafter was dismissed.  We are not suggesting for one moment that the argument will necessarily succeed.  We simply say that it is arguable.  

9.	There is a second argument which is that there is a conflict between the principles which appear to be established by Barber, or potential conflict between the principles which appear to be established by Barber and the right to a fair trial and a fair hearing under article 6 of the Human Rights Convention, which although not formally part of our law is simply, which even at this stage and before it becomes part of our law in October, it is necessary to at least some heed to.  

10.	We are told that this precise point has been before this Tribunal, chaired by H H J Clark, in March 2000 and that he took the view, together with his colleagues on that occasion, that that potential conflict merited argument at a full hearing.  We would not think it right to disagree with that view and, therefore, that argument, it seems to us, is one which we should regard as arguable.  It follows that as so far as the first part of this case is concerned, there will be a full hearing of Mr Okoturo’s appeal, assuming that he actually wants to proceed with it. 

11.	So far as the second part of the appeal is concerned, that is a different matter.  The Tribunal stayed the complaints of unfair and wrongful dismissal because the Applicant had made and still today has outstanding a complaint of wrongful dismissal, pending in the Wandsworth County Court.  We have no doubt that, although there is no express power in the Employment Tribunal to stay proceedings, it has power to control its own procedure. It has an implicit power therein to grant a stay, where appropriate to do so; and to be fair, Mr O’ Dempsey has not sought to suggest the contrary.  He says that it should only do so in rare cases where it is necessary to do so in the interests of justice; that proposition is not one with which we would disagree.  But in this current case we see every reason why, in the interests of justice, a stay was necessary and appropriate.  The issue before the County Court on a wrongful dismissal claim where the dismissal was said to be a constructive dismissal involved, as I have already said, looking to see whether the employers had acted in such a way as to repudiate the contract of employment.  In the Tribunal, unfair dismissal would have raised and does raise precisely the same issue.  It is true that, in a Tribunal, there would also formally be the subsequent issue, once dismissal had been established, as to whether that dismissal was fair.  But it is a rare case indeed in which an Applicant, whose allegation of constructive dismissal is in dispute, establishes that there was a constructive dismissal and does not succeed, without very much more effort, in establishing that that constructive dismissal was unfair.  Thus the issues in the County Court were almost entirely the same issues as those which would be raised if the claim for unfair dismissal were to be continued in the Employment Tribunal.  

12.	It is said that it was an erroneous exercise of their discretion for the Tribunal, in effect, to make it a condition of proceeding with the stayed complaints that the Applicant should pay the two outstanding cost orders against him.  The argument put forward is that if he succeeds in the County Court, but is unable to pay the costs orders, then he will in effect be prevented from coming back to the Tribunal. 

13.	There are perhaps a number of answers to that, one of them is that if he succeeds in the County Court, it may well be that those costs orders will either be capable of being paid or will in some way not be effective because the matter will be compromised.  A further reason is that if he succeeds in the County Court, but is unable to pay the costs orders, he will always be able to make an application to the Tribunal for the stay to be lifted.   We do not think that, having looked at the matter overall there is an arguable ground of appeal, so far as that part of the case is concerned.  

14.	We think that if there is another appeal case going forward raising the article 6 point, it is really quite important that the Employment Appeal Tribunal has the opportunity to decide whether it wants to hear that appeal and this appeal together.  We realise that different funding may make a difficulty, but that is something that can be looked at, at the appropriate time.  What we would therefore like to happen is that there should be a directions hearing, at which the Court can consider joining this appeal with the other appeal or any other appeal which raises the same or a similar point.  

15.	It is going to become unmanageable, if Human Rights points are going off, as it were as individual fireworks in individual courts on different days, without one division of this Tribunal knowing what the other has decided. Although, as a temporary visitor here, I am not going to say anymore about what procedures should be adopted, we think it is important that control is maintained.  

16.	So far as categorisation is concerned, this case in itself does not look important enough to be a B rather than a C, but if it is linked together with other cases, then clearly a point of important principle is going to have to be decided.  So it is our suggestion is that categorisation should be decided at that directions hearing.  
17.	We direct that an amended Notice of Appeal is put in within 14 days, but it must come to me so that I can see that the grounds in the Notice are consistent with the grounds on which we have said that this case can go for a full hearing.  I am not suggesting for one moment that, that would not be achieved by Counsel’s drafting, but I do believe that it is important that somebody (and it has to be me) just runs a line over it to check that that is so.