Appeal No.	EAT/344/00

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 18 September 2001
Judgment delivered on 4 December 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MR J R RIVERS CBE

MR E OKOTURO	APPELLANT

TESCO STORES PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR DECLAN O’DEMPSEY
(of Counsel)
Instructed By:
Fulham Legal Advice Centre
679a Fulham Road
London SW6 5PZ	
For the Respondent	MR TIMOTHY PITT-PAYNE
(of Counsel)
Instructed By:
Messrs Dibb Lupton Alsop
Solicitors
Victoria Square House
Victoria Square
Birmingham
B2 4DL

JUDGE PETER CLARK:

1	The appellant, Mr Okoturo, commenced employment with the respondent at their Hammersmith, Brook Green store on 25 September 1995.

2	On 27 July 1999 he presented a complaint to the London (North), now Central, Employment Tribunal (the first complaint), case No. 6004556/99.  He raised a number of claims, in particular, victimisation contrary to section 2 of the Race Relations Act 1976, unauthorised deductions from wages and for holiday pay.

3	On 29 August 1999 the appellant withdrew the first complaint and it was then dismissed by order of the tribunal on withdrawal.

4	He then brought proceedings against the respondent in the Wandsworth County Court, raising, among other claims, those identified above in the first complaint.  The County Court proceedings were struck out by order of Deputy District Judge Crick on 8 December 1999.

5	Meanwhile on 20 October 1999 the appellant terminated his employment with the respondent, alleging that he had been constructively dismissed.  He then presented a second complaint to the tribunal on 1 December 1999, case No. 22201334/99, raising some new and some old causes of action.  The new causes of action included unfair dismissal and wrongful dismissal; the old causes of action included those identified above, raised in the first complaint and in the County Court proceedings, later struck out.

6	On 25 February 2000 a tribunal chaired by Miss A.M. Lewzey considered, as one of two preliminary issues, whether the claims of victimisation and the claim for holiday pay / unauthorised deductions from wages were frivolous and vexatious and ought to be struck out under rule 13(2)(e) of the then Employment Tribunal Rules of Procedure 1993.  

7	By a decision with extended reasons promulgated on 16 March 2000 those claims were struck out on the grounds that they had been dismissed on withdrawal of the first complaint and the applicant was barred from raising them in the second complaint, applying the approach of the Court of Appeal in Barber v Staffordshire County Council [1996] IRLR 209.  Against that part of the tribunal’s decision this appeal is brought.

8	By his amended grounds of appeal the appellant, through Mr O’Dempsey, raised four issues for determination.  The third of those, that the exercise of the tribunal’s power to strike out the claim under rule 13(2)(e) was incompatible with the right to a fair trial enshrined in Article 6(1) ECHR, was expressly abandoned in the light of the House of Lords decision in R v Lambert [2001] 3 WLR 206, on the basis that the Human Rights Act 1998 did not apply retrospectively to cases determined at first instance before the Act came into force on 2 October 2000 insofar as reliance was placed on the court or tribunal’s obligation under the Act to comply with Article 6(1).

9	However, Mr O’Dempsey maintained his fourth ground of appeal, which was that the rule against restrospectivity did not apply to an argument based on the application of sections 3(1) and 7(1)(a) or (b) of the 1998 Act.  By virtue of those provisions, he submits, the appeal tribunal ought to scrutinise the approach of the Employment Tribunal, a public authority, to determine whether or not it had reached a conclusion which is incompatible with the appellant’s Convention right to a fair trial under Article 6(1).  In our judgment that submission cannot succeed.

10	The exception to the retrospectivity principle in section 7(1)(a) or (b) is limited, by section 22(4) of the 1998 Act, to proceedings brought by or at the instigation of a public authority.  That is not this case.  Section 3(1) is not a free-standing right such that a court or tribunal is obliged to apply it in cases not involving a public authority.  Accordingly we have concluded, consistent with both Lambert and the subsequent Court of Appeal decision in Pearce v Governing Body of Mayfield School [2001] IRLR 669, that the question of compatibility between the principle of a fair trial contained in the Convention and the Employment Tribunal’s power to strike out under the then procedural rule, does not arise in this case.

11	In these circumstances we turn to Mr O’Dempsey’s two further submissions in the appeal.

12	First, he contends that the tribunal erred in law in failing to consider the reasons for the appellant’s withdrawal of the first complaint.  In support of this submission he relies on the decision of the EAT, Lindsay P presiding, in Ako v (1) Rothschild Asset Management Ltd (RAM) and (2) Boston Safe Deposit and Trust Company (EAT/103/00.  8 February 2001. Unreported).  In that case the applicant commenced proceedings in the Employment Tribunal by an Originating Application presented on 18 June 1999 (the first complaint) complaining of unfair dismissal and racial discrimination by her employer, the first respondent, RAM.  On 28 June she wrote to the tribunal, withdrawing her application against RAM.  That was followed by a decision of a tribunal chairman, dismissing the application on withdrawal by the applicant.  That decision was promulgated on 6 July 1999.

13	On 12 July she presented a second Originating Application (the second complaint) naming both RAM and Mellon Bank as respondents.  The nature of her case against RAM was as in the first complaint.

14	By its Notice of Appearance lodged on 5 August 1999 RAM took the point that the applicant was barred from bringing the second complaint by the principles of estoppel and res judicata, relying on the Court of Appeal decision in Staffordshire County Council v Barber [1996] IRLR 209.  That plea succeeded before a tribunal which struck out the claim against RAM by a decision dated 20 October 1999.

15	On appeal, the EAT acknowledged that it was bound by the decision in Barber, but distinguished it on two grounds:

(1)	that in Barber there was the probable or even merely possible involvement of the predecessor to section 203 Employment Rights Act 1996 (section 140 Employment Protection Consolidation Act 1978) which was central to the conclusion by the Court of Appeal that there was in that case not merely an administrative act but a judicial decision for the purposes of the doctrine of res judicata and

(2)	there was no hearing before the Chairman who struck out the first complaint in Ako; it could not be described as a case where a cause of action has been determined by a court of competent jurisdiction not to exist; 

- Ako, paragraph 19 of the transcript.

16	Mr O’Dempsey submits that Ako was correctly decided; permissibly distinguished Barber on the facts; ought to be followed by this division as a matter of comity and, when applied to the facts of the present case leads inevitably to the conclusion that, by parity of reasoning, the strike-out order in this case ought to be set aside and the second complaint be remitted to a fresh tribunal for hearing on its merits.

17	For the respondent, Mr Pitt-Payne submits that Ako was wrongly decided; that it impermissibly purports to distinguish Barber on its facts when no such distinction exists and that we are bound, as was the Employment Tribunal, to follow and apply the principles in Barber.

18	In these circumstances it is necessary for us to consider the grounds of distinction found by the EAT to exist in Ako.

19	First, the involvement of section 140 of the 1978 Act, in force at the time Barber was decided and since replaced by section 203 of the 1996 Act, which prohibits agreements to exclude the statutory protection afforded to employees under the Act save in certain circumstances.  Those exceptions include agreements reached through ACAS and compromise agreements as defined in section 140(3), now section 203(3) of the 1996 Act.

20	Thus, the first question is a factual one.  Was there an ACAS conciliated agreement or compromise agreement reached in Barber?  If not, then the involvement of section 140 of the 1978 Act could not have been a consideration, let alone be central to the conclusion reached by the Court of Appeal in that case.

21	It may be that the EAT in Ako was at a disadvantage in having Barber cited to them only in the Industrial Relations Law Reports for this reason; IRLR reports only the judgment of the Court of Appeal in Barber; the ICR report, [1996] ICR 379, sub nom. Barber v Staffordshire County Council, carries both the EAT judgment, delivered by Mummery J and the subsequent Court of Appeal judgments, principally that of Neill LJ with which Auld LJ and Sir Iain Glidewell agreed.  We have been referred to the ICR Report.

22	The facts of Barber are helpfully set out by Mummery J; [1996] ICR 382 C – 384 C.  From that summary it is apparent to us that no section 140 agreement was reached between the parties before Mrs Barber’s first complaint was dismissed by a tribunal on withdrawal by her by a decision made on 5 May 1993.  What happened was that Mrs Barber, a part-time teacher employed by the respondent County Council, presented an Originating Application to the Employment Tribunal on 2 November 1992 claiming a redundancy payment only.  She did not then complain of unfair dismissal.  By their Notice of Appearance the respondent contended, among other things, that because the applicant was employed for less than eight hours per week, she had no entitlement to a redundancy payment.  Surrey County Council v Lewis [1987] ICR 982 (HL).

23	The hearing of the complaint was fixed for 5 May 1993.  Shortly before that day there were discussions between the applicant’s trade union representative and a representative of the respondent.  On 4 May the applicant’s representative indicated his intention to withdraw the application and the Council’s representative in turn indicated that he would have no application to make on behalf of the Council and, on the understanding that the application would now be dismissed, did not intend to appear at the hearing.  Instead he sent a letter to the tribunal recording that discussion.

24	On 5 May the applicant’s representative only attended on behalf of the applicant and withdrew the application.  No evidence was heard.  The tribunal reached a decision, duly promulgated on 18 May 1993 that the application is dismissed on withdrawal by the applicant. 

25	Later, following the House of Lords decision in R v Secretary of State for Employment ex p. EOC [1994] ICR 317, removing the discriminatory condition for unfair dismissal protection which distinguished between full-time and part-time employees, Mrs Barber presented a second complaint claiming both a redundancy payment and unfair dismissal.  It was that second complaint which was eventually struck out by the EAT, a decision upheld by the Court of Appeal, after a tribunal Chairman had initially refused to strike out on the basis that in his view no questions of cause of action or issue estoppel arose.

26	It follows, on a careful perusal of the factual background in Barber, that no question of a section 140 agreement arose such as to form the basis of the Court of Appeal’s conclusions.

27	As to the second point of distinction identified in Ako, again on close examination of the facts no such distinction appears to us to exist.  In Barber the applicant’s representative attended before the tribunal.  There was no representative present from the respondent.  No evidence was heard.  The applicant’s representative simply withdrew the application.  The tribunal then made a formal decision dismissing the application on withdrawal without investigation.  We can see no distinction between those circumstances and those in Ms Ako’s case, where a chairman, on paper, considered a letter from Ms Ako which simply stated:

“I write to withdraw my application against [RAM].”

28	Further, we do not place the same interpretation on the passage from the judgment of Neill LJ in Barber [1996] IRLR 212, paragraph 28, cited at paragraph 19 of the EAT judgment in Ako.  There, Neill LJ referred to the definition of cause of action estoppel contained in a passage in the judgment of Diplock LJ in Thoday v Thoday [1964] P 181, 197.  We can see no warrant for the suggestion that there, or in paragraph 32 of his judgment in Barber, Neill LJ was saying that there must be some form of enquiry by the tribunal into the applicant’s reasons for withdrawing his claim before it can be said that the tribunal has determined the cause of action so as to give rise to a cause of action or issue estoppel between the same parties.  On the contrary, it is clear from paragraph 30 of his judgment in Barber, that Neill LJ upheld the approach of Mummery J in the EAT when he said that there was nothing in the principles of cause of action or issue estoppel which stipulated that they could only apply in cases where a tribunal had given a reasoned judgment on the issues of fact and law in the previous litigation.  It is at this point that Neill LJ refers to section 140 of the 1978 Act, but only in the context that a tribunal must be satisfied that a withdrawal is properly made.  There was no suggestion in either Barber or Ako that the withdrawal was other than intentionally made, or that the withdrawal was induced by any impropriety on the part of the respondent.

29	Thus, reverting to the present case, we are unable to detect any distinguishing features between it and the case of Barber.  Consequently we find ourselves bound, as was the Employment Tribunal, by the Court of Appeal decision in Barber, to reject this further ground of appeal.

30	Mr O’Dempsey’s fourth and final ground of appeal is that the tribunal fell into error by failing to consider whether the relitigation by the appellant of the claims for victimisation, unauthorised deductions and holiday pay in the second complaint constituted an abuse of process such as to lead to a strike-out applying the principles summarised by the Court of Appeal in Sweetman v Shepherd (24 March 2000 QBENI 1999/1254/A2.  Transcript supplied).

31	Having considered the judgment of the court delivered by Kennedy LJ in Sweetman we accept Mr Pitt-Payne’s submission that the court was there concerned with the second of two separate principles considered by the Court of Appeal in Barber.  The first principle, which was applied by the tribunal in the present case, was that of res judicata in the strict sense; that is that where a cause of action in subsequent proceedings is identical to a cause of action that has been determined between the same parties in earlier proceedings, there is an absolute bar to relitigating that cause of action in the later proceedings, absent fraud or collusion entitling a party to set aside the earlier judgment; the second principle derives from the rule in Henderson v Henderson [1843] 3 Hare 100, that a party will not be permitted to bring forward in a second action a matter which properly belonged to or could have been raised in earlier proceedings between the same parties.  In Barber the first principle applied to the claim for a redundancy payment, the second to the subsequent additional complaint of unfair dismissal.  The question in Sweetman was whether the claimant in those proceedings ought to be permitted to raise a claim which could have been but was not raised by him as defendant in earlier proceedings by way of a claim for indemnity or contribution against his co-defendants.  Barber was not referred to in the judgment in Sweetman, which does not cause us to alter our view formed in relation to the third ground of appeal, that this tribunal was entitled to strike out those parts of the second complaint which coincided with claims raised in the first complaint.

32	It follows that this appeal is dismissed.  

33	At the oral hearing before us both counsel made protective applications for permission to appeal in the event that their submissions were not upheld.  We have considered that application so far as the appellant is concerned in the light of our decision.  Whilst acknowledging that we have not viewed Barber in the same way as did the EAT in Ako, we note that permission to appeal was granted in Ako.  We do not know whether that appeal is to be pursued, but we think it sensible to leave to the Court of Appeal the question as to whether permission ought to be granted in this case.  For our part, for the reasons we have given, we consider that the points taken in this appeal are sufficiently covered by the cases of Lambert, Pearce and Barber not to require us to grant permission.  Accordingly that application is dismissed.