Appeal No. UKEAT/0382/10/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 March 2011
	   Judgment handed down on 17 March 2011

Before
THE HONOURABLE MR JUSTICE SILBER
(SITTING ALONE)

MR P J FOSTER	APPELLANT

BON GROUNDWORK LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR SIMON FORSHAW
(of Counsel)
Instructed by:
Mary Ward Legal Centre
26-27 Boswell Street
London
WC1N 3JZ	
For the Respondent	MR CHRIS BRYDEN
(of Counsel)
Instructed by:
Messrs Lefevre LLP Solicitors
Alexandre House
399 Crofton Road
Orpington
Kent
BR6 8NL	

SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal

In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay.  While still being employed by the Respondent he submitted an ET1 alleging he had been laid off.
By a judgment of Employment Judge Salter (“the first judgment”), it was held that the Claimant was not entitled to redundancy pay.  The Claimant was dismissed because of retirement with effect from 31 July 2009.
He then submitted a new ET1 claiming, among other things, four different types of unfair dismissal, notice pay in breach of contract and a guarantee payment.
The Respondent applies to have the claims struck out as being res judicata by reason of the first judgment on alternatively as an abuse in the Henderson v Henderson sense.  The application was granted save in respect of the guarantee payment.  The Claimant appealed and the Respondent cross-appealed in respect of the guarantee payment.
Held – 
1. 	Appeal allowed as:
(a)	Res judicata did not apply as although the first Tribunal held that the Claimant was not dismissed by reason of redundancy, this did not create an estoppel as (i) this finding was not necessary for the decision as the claim was layoff (Arnold v National Westminster Bank [1991] 2 AC 93, 105 applied; and (ii) In any event, the first Tribunal did not have jurisdiction to deal with a redundancy as it was premature (Watts v Rubery Owen [1997] 2 All ER 1, applied);
(b)	This was not a case of abuse as there was no oppressive conduct and this was not a case of the Claimant abusing the court process (Johnson v Gore-Wood [2002] 2 AC 1, 31 applied).
2.	The cross-appeal was dismissed as the Employment Judge was entitled to conclude that it was not an abuse in the Henderson v Henderson sense to pursue this claim in the second action.

THE HONOURABLE MR JUSTICE SILBER
Introduction
1.	Mr Patrick Foster (“the Appellant”) appeals from a Judgment of the Ashford Employment Tribunal given by Employment Judge Seymour (“the Seymour judgment”) sitting on 9 March 2010, in which the Judge struck out all of the Appellant’s claims of unfair dismissal against both Groundwork Ltd (“the Respondent”) on the basis that:-
(a)	The claims could not be pursued because they were res judicata in the light of a previous judgment given by Employment Judge Salter (“the Salter  judgment”); or
(b)	The pursuit of these claims amounted to an abuse of process in the Henderson v. Henderson (1843) 3 Hare 100 sense because these claims could have been raised in the hearing leading to the Salter judgment.

2.	A claim by the Appellant for a guarantee payment pursuant to Part III of the Employment Rights Act 1996 (“ERA 1996”) was not struck out in the Seymour judgment but the Respondent cross appeals against that decision on the basis that the pursuit of such claims by the Appellant amount to an abuse of process.  It is common ground that other claims of notice pay, holiday pay and a failure to provide a statement of terms and conditions of employment in accordance with section 1 ERA 1996 should proceed to a hearing on the merits.  For ease of reference, I will identify aspects of the different proceedings by referring to the Employment Judge who heard them.

The Factual Background and the Salter Judgment
3.	The Appellant is a 78 year old man, who was employed as a carpenter by the Respondent from 1 August, 1997.

4.	On 15 April 2009, the Appellant was laid off without pay by the Respondent.  Thereafter, on 27 April 2009, the Appellant wrote to his line manager, Mr Bruce Nagle and stated that the Respondent was not entitled to lay him off and that he should have been paid for the period since 15 April 2009.  He requested that he be returned to full employment and that he be provided with a written copy of his terms and conditions of employment.

5.	Two days later, on 29 April, 2009 Mr Nagle (on behalf of the Respondent) decided to dismiss the Appellant.  The dismissal was said to be by reason of retirement, although that is not accepted by the Appellant.  By letter of 21 May 2009, the Respondent confirmed that the Appellant was to be dismissed with effect from 31 July 2009.

6.	It is common ground that the Appellant has not been paid on or after his dismissal:-
(a)	any wages for the period of 15 April, 2009 up to the date of his dismissal;
(b)	any guarantee payment pursuant to Part III ERA 1996;
(c)	any notice pay;
(d)	any holiday pay pursuant to Regulation 14 of the Working Time Regulations 1998 (“WTR 1998”) or otherwise.

7.	The Appellant submitted an ET1 to the Employment Tribunal on 10 June, 2010, which crucially was submitted before the Appellant’s dismissal took effect on 31 July, 2009.  The Appellant stated to the Employment Tribunal on the ET1 that he was still employed and that his employment was continuing.  The ET1 stated by way of complaint in Box 5 that:-

“I have been laid off from my employment since Wednesday 15 April 2009. I have not worked for my employer since this date. My lay off has now exceeded 4 consecutive weeks or a total of 6 weeks within the last 13 week period.
I wrote to my employer on 27 April 2009 but I have not been provided with work by my employer who has taken away from me a van that is essential for me to carry out my employment.”

8.	The matter came before Employment Judge Salter and at the hearing, the Appellant appeared in person. The Judge handed down the Salter Judgment on 10 August, 2009: with written reasons being sent to the parties on 4 September, 2009.

9.	The Salter Judgment determined that “the appellant is not entitled to a declaration of entitlement to a redundancy payment”. Paragraphs 15 and 16 of the Reasons supporting the Salter Judgment state that:-

“The Tribunal considered the claim for a declaration in relation to redundancy. Entitlement to redundancy pay is dependent upon a finding that the employee has been dismissed by reason of redundancy as defined in s. 139 Employment Rights Act 1996 (“the Act”) or whether pursuant to s. 148 of the Act the Claimant has given notice in accordance with the provisions of s. 148(1). There was no suggestion on the part of the Claimant that he had given any such notice. The provisions relating to redundancy during a lay off do no (sic) apply.
“At the time of the presentation of the ET1 the Claimant had been given notice that his employment was to end on 31 July 2009 but there was no evidence that there was no (sic) redundancy situation within the respondent. The claimant was dismissed not by reason of redundancy and no other reason. His claim for a redundancy payment fails”

10.	The Employment Tribunal refused to hear an application to review the Salter judgment because the application was brought out of time.  No appeal was brought against the Salter judgment.

11.	On 15 October 2010, the Appellant with the pro bono assistance of the Mary Ward Legal Centre presented to the Employment Tribunal a fresh claim seeking remedies for:-
(a)	unfair dismissal under four different statutory provisions, namely:-
i.	ordinary unfair dismissal contrary to sections 94 and 98 of the ERA 1996;
ii.	unfair dismissal contrary to section 103A of the ERA 1996 on the basis that the principal reason for the Appellant’s dismissal was that by his letter of 27 April 2009 he had complained about being laid off, not being paid wages and the failure to provide him with terms and conditions of employment;
iii.	unfair dismissal contrary to section 104 ERA 1996 on the basis that the Appellant was dismissed for having asserted a statutory right, in the light of the letter of 27 April, 2009; and
iv.	unfair dismissal contrary to section 98ZA – 98ZG of the ERA 1996 on the basis that the Respondents had failed to follow the statutory retirement process set out in Schedule 6 to the Employment Equality (Age) Regulations 2006 (“the Age Regulations”);
(b)	a failure to pay a guaranteed payment contrary to Part III ERA 1996;
(c)	a failure to pay a compensation payment pursuant to Regulation 14 WTR 1998;
(d)	a failure to pay notice pay in breach of contract; and
	(e)	a failure to provide the Appellant with a statement of terms and conditions of employment in accordance with section 1 ERA 1996 and an award pursuant to section 38 of the Employment Act 2002.

12.	The Respondent then applied to have all these claims struck out as being res judicata by reason of the Salter Judgment or alternatively because of the earlier proceedings, the second proceedings were an abuse of process in the sense set out in Henderson v. Henderson.

13.	When the matter came before Employment Judge Seymour for a pre-hearing review on 9 March 2010, it was held that:-
(a)	The claims for unfair dismissal contrary to sections 103A ERA 1996 and 104 ERA 1996 depended on a finding as to the principal reason for the Appellant’s dismissal which was not retirement. The Salter judgment had held that the principal reason for the Appellant’s dismissal was retirement with the result that the Appellant was precluded by issue estoppel from challenging that finding. In consequence, those claims could not succeed and had to be struck out on the basis of issue estoppel;
(b)	The claims of unfair dismissal which did not depend on a particular finding as to the reason for the Appellant’s dismissal could not be struck out on grounds of issue estoppel.  Those claims arose under sections 94 and section 98 of the ERA 1996 and the claim that the dismissal was effected without following the statutory retirement procedures;
(c)	Nevertheless all the unfair dismissal claims had to be struck out under the Henderson v. Henderson basis as being an abuse of process; but that
	(d)	The claim for guarantee payments did not fall to be struck out in the second action since it was not an abuse of process.

14.	The Appellant now appeals against the findings (a), (b) and (c) while the Respondent cross-appeals in respect of the finding (d).

The Issues
15.	The case for the appellant is that:-
(a)	The finding that there was issue estoppel is incorrect because the reason given in the Salter judgment that the Appellant was dismissed not by reason of redundancy but by reason of retirement was not a necessary ingredient in the cause of action between the parties and so could not create an issue estoppel (“The Issue Estoppel/Necessary Ingredient Issue”);
(b)	The finding in the Salter judgment that the Appellant had been dismissed by reason of retirement was one which the Employment Tribunal had no jurisdiction to make and so therefore could not give rise to an issue estoppel (“The Issue Estoppel/Jurisdiction Issue”);
	(c)	The findings that the Seymour claim was an abuse of process on the Henderson v Henderson basis constituted an error of law (“The Abuse of Process Issue”).

16.	Each of these contentions is resisted by the Respondent who in turn contends by way of cross-appeal that the claim for the guarantee payment should have been struck out as an abuse of process on the Henderson v Henderson basis, but that is resisted by the Appellant (“The Cross-Appeal Issue”).

17.	I will deal with these issues in turn.

The Issue Estoppel/Necessary Ingredient Issue
(i) Introduction
18.	The case for the Appellant is that the only matter which could be the subject of issue estoppel was the claim that the Appellant was eligible for a redundancy payment by reason of being laid off as that was the only complaint alleged by the Appellant in the first claim and therefore this was the only issue which it was necessary to be determined in the Salter judgment.  The case for the Appellant proceeds on the basis that any other finding (such as that the Appellant was dismissed not by reason of redundancy but by reason of retirement) was not a necessary finding and it therefore cannot be the subject of issue estoppel.

19.	It is settled law that where an issue has been litigated before a judicial body and determined between the parties, it cannot be reopened provided that the issue has been a “necessary ingredient” in the first cause of action.

20.	Lord Keith of Kinkel in his speech in Arnold v. National Westminster Bank plc [1991] 2 AC 93 at 105 with which Lord Griffiths, Lord Oliver of Aylemton, Lord Jauncey of Tullichettle agreed said (with emphasis added) that:-

“... a necessary ingredient in a cause of action [which] has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same action is relevant one of the parties seeks to reopen that issue.”

21.	It is necessary to emphasise that findings which are not a “necessary ingredient in a cause of action” will not give rise to a ‘fact estoppel’.

22.	It is also of critical importance to explain that the right to a redundancy payment is governed by section 135 of the ERA 1996, which provides that:-

“(1) An employer shall pay a redundancy payment to any employee of his if the employee –
(a) is dismissed by the employer by reason of redundancy, or
(b) is eligible for a redundancy payment by reason of being laid off or kept on short-time.”

23.	The claim of the Appellant made to the Tribunal which was considered in the Salter judgment arose under section 135(1)(b) of the ERA and not under section 135(1)(a) ERA 1996 as appears quite clear from the ET1 of the Appellant.  This refers to the Appellant having been “laid off” but it did not make any reference to him being dismissed.  Indeed, on the contrary, the ET1 stated that the employment of the Appellant was continuing and did not refer to the Appellant having a period of notice.

24.	An Employment Tribunal can only adjudicate on matters which are referred to in the ET1.  It is not entitled to conduct a general review of an employment history of an individual so as to assess the possibility of other claims (see, for example, Chapman and Another v. Simon [1994] IRLR 124 at paragraph 33(1)).  Thus the Salter judgment had to focus on the claim in the ET1 that the Appellant had been laid off, although by the time of the hearing on 10 August 2009, the Appellant had ceased to be employed by the Respondent.  The Appellant had not, however, amended his claim form which was still for lay off and not for dismissal because of redundancy.

25.	I agree with the contention made by Mr Forshaw that neither the fact of dismissal nor the reason for that dismissal was a necessary ingredient in the cause of action for a redundancy payment under section 135(1)(b) with a result that no issue estoppel could arise.

The Issue Estoppel/Jurisdiction Issue
26.	Mr Forshaw relies on another reason why issue estoppel cannot arise and that is because of another condition for establishing issue estoppel which was explained by Binney J giving the judgment of the Supreme Court in Canada in Danyluk v. Ainsworth Technologies Inc [2001] 2 SCR 460 explained that “a decision which is made without jurisdiction from the outset cannot form the basis of an estoppel” ([36] and [51] and see also Spencer Bower and Handley, Res Judicata [Fourth edition] – 2009 (para 4.09).  Similarly, Sir Nicholas Browne-Wilkinson stated that “it is well established that there can be no estoppel arising out of an order or judgment given in excess of jurisdiction” (O’Laoire v Jackel Ltd [1991] 1 Cr 718, 729).  The case for the Appellant is that any finding in the Salter judgment that “the appellant was dismissed not by reason of redundancy” cannot form the basis of an issue estoppel not merely that it was not necessary for the Salter decision but also because the Salter Tribunal did not have jurisdiction to make such a finding.

27.	It follows that unless the Salter Employment Tribunal had jurisdiction to determine the reasons for dismissal, no issue of estoppel could arise.

28.	Mr Forshaw then submits that the finding in the Salter judgment that the Appellant had been dismissed by reason of retirement was a finding that the Employment Tribunal did not have jurisdiction to make essentially because the basis of the claim which led to the Salter judgment was, as stated in the ET1 (which I quoted in paragraph 7 above), that the Appellant’s employment was continuing.  Thus his case is that there was no jurisdiction to consider a reason for dismissal as any complaint would have been premature.

29.	He contends that the reason for that is that section 164 of the ERA 1996 provides (with my emphasis added) that:-

“164 (1) An employee does not have any right to a redundancy payment unless, before the end of the period of six months beginning with the relevant date –
(a) the payment has been agreed and paid,
(b) the employee has made a claim for the payment by notice in writing given to the employer,
(c) a question as to the employee’s right to, or the amount of, the payment has been referred to an [employment tribunal], or
(d) a complaint relating to his dismissal has been presented by the employee under section 111.”

30.	It is clear that a claim has to be brought in the time frame beginning with “the relevant date”, which as a result of section 145(2)(a) of the ERA 1996 is defined as the date “on which notice expires”.  Thus the case for the Appellant is that a claim under section 135(1)(a) ERA 1996 for a redundancy payment on a dismissal by reason of redundancy on notice, can only be pursued after the expiry of the notice period because otherwise it is premature.  It is said by Mr Forshaw that there is ample authority for the contention that Employment Tribunals have no jurisdiction to adjudicate over a premature claim for a redundancy payment.

31.	He points out that in Watts v. Rubery Owen Conveyancer Limited [1977] 2 All ER 1, this Appeal Tribunal was dealing with a claim for redundancy payment and Kilner Brown J reviewed some authorities before concluding that:-

“The effect of these cases is that where an application is made to an Industrial Tribunal before the act of dismissal has taken place it is a premature application and the Industrial Tribunal has no jurisdiction”.

32.	In Pritchard-Rhodes Limited v. Boon and Milton [1979] IRLR 19, this Appeal Tribunal applied and followed what had been said in the Watts case.  More recently Mummery P in South Durham Health Authority v. Unison [1995] UKEAT 932-94-0602 adopted a similar approach when he said at page 7:-

“Similarly in the case of entitlement to redundancy payments discussed in the authorities relied on by [counsel] there is no right of action, no entitlement to the payments before the date of termination has arrived.  An originating payment for payment before a cause of action has arisen is therefore premature”.

33.	Mr Chris Bryden, counsel for the Respondent contends that those authorities are no longer good law and he adopts the criticisms made of the Watts line of case in Harvey on Industrial Relations Employment Law Volume 1 at paragraphs 2086-2090.  In particular, the case for the Respondent is that when Watts was decided, it was the law that a complaint about unfair dismissal could not be presented until after dismissal with a result that a complaint of unfair dismissal presented before dismissal would have been premature and incompetent.  This reasoning, he submits underpins the ratio of Watts which was that the employment protection legislation should be construed in a comparative manner and because a complaint for unfair dismissal could not be presented before the effective date of termination, then it followed that redundancy payment also could not be claimed before the date.

34.	The editors of Harvey do not regard that as a convincing reason because they point out that there were and indeed are significant differences between the unfair dismissal regime and the redundancy payment regime with different time limits adopted in each.

35.	The most potent point made as to why Watts is no longer law is that a complaint of unfair dismissal can now be lodged before the dismissal takes effect during the notice period and reliance is placed on the ERA 111(3) which replaces an earlier provision.  So it is said in Harvey that the effect of the position is that “the sub-strata of the ratio in Watts has now gone” (Paragraph 2080).

36.	I am unable to accept that submission, which is that the provisions enabling unfair dismissal claims to be brought before the dismissal takes effect have the identical effect on redundancy claims, even though they are not referred to in the legislation which changed unfair dismissal law or indeed in any other legislation.

37.	The first reason is, as I have explained, the fact that a claim for redundancy pay cannot be made before the date of termination has been settled by Watts, and the two cases to which I referred in paragraphs 32.  Parliament has not changed the law on this when it could have done so when introducing the provision for unfair dismissal.  So Parliament could not have intended by section 111(3) of the ERtsA to change the law in relation to redundancy payment claims.  After I reached that conclusion, I noticed that because as Bennion on Statutory Interpretation (5th Edition) at page 711 section 235 explains:-

“Tacit legislation. Parliament is normally presumed to legislate in the knowledge of, and having regard to, relevant judicial decisions.  If therefore parliament has a subsequent authority to alter the effect of the decision on the legal meaning of an enactment, but refrains from doing so, the implication may be that Parliament approves of that decision and adopts it.  That is an aspect of what maybe called tacit legislation”

This principle has been applied regularly (see for example R v Williams [2010 EWCA Crim 2552 [33] per Thomas LJ).  This principle means that Parliament must be presumed to have intended that cases such as Watts remain good law and have not been reversed by section 111(3).

38.	The second reason why I consider that the Watts line of authorities has not been changed by legislation is that if Parliament had intended that the Watts line of authorities should remain intact after the enactment of section 111(3), it would then not have referred to them in any legislation thereby leaving the common law and, in particular, the Watts line of cases intact. That is precisely what has happened.  I therefore conclude that the Watts line of authorities remains valid.

39.	It must not be forgotten that the Appellant’s first ET1 which was presented to the Employment Tribunal and led to the Salter judgment was presented prior to the Appellant’s dismissal having taken effect.  It was in fact presented on 10 June 2009 but the Appellant’s dismissal did not take effect until 31 July 2009.  Therefore the jurisdictional qualification set out in section 164 of the ERA 1996 could not be satisfied and the Appellant’s claim would have been premature.

40.	In consequence, the Salter Tribunal had no jurisdiction to make any findings as to the reason for the Appellant’s dismissal because it was outside the jurisdiction of that Tribunal.  In reaching that conclusion, I have not overlooked the Respondent’s submission that the decision of HM Prison Service v Barua [2009] IRLR undermines the Watts line of cases.  That contention must be rejected as Barua was not a case of redundancy pay and the Watts line of cases was not referred to in the judgment.

41.	I should briefly mention the case of Watt v Ahsan [2008] 1 All ER 869 in which the House of Lords held that a decision made by a competent Tribunal as to jurisdiction was binding on the parties so as to found an estoppel even though a later decision might show that it was erroneous in law.  I accept the submission of Mr Forshaw that the present case is different because the Salter Tribunal made no finding in a jurisdictional sense which would give rise to an estoppel.  Neither was there any implicit finding made by the Salter Tribunal as to its jurisdictional competence since the point was not considered in those proceedings.  In any event it was not necessary to the determination of the Salter judgment.  Thus no estoppel could arise.

42.	So it comes to this, no estoppel arises as a result of the Salter decision because the Salter Tribunal did not have jurisdiction to deal with a claim for redundancy as a result of dismissal.  I therefore find that Employment Judge Seymour erred in law in striking out the Appellant’s claim for unfair dismissal pursuant to sections 103A and 104 ERA 1996 and it follows therefore that those cases should proceed unless the claims are an abuse which is the issue to which I now turn.

The Abuse of Process Issue
43.	In his submissions, Mr Forshaw distinguishes between three different types of cases which were considered as being an abuse of process and they are:-
	(a)	claims for unfair dismissal pursuant to sections 103A and 104 of the ERA 1996 where a finding for the reason of the appellant’s dismissal was fundamental to the appellant’s success (“the Unfair Reasons Dismissal Claims”);
	(b)	the claims for unfair dismissal pursuant to section 98 of the ERA 1996 and for failure to comply with schedule 6 of the Age Regulations where findings for the reasons for the appellant’s dismissal was not fundamental to the appellant’s success (“the other unfair dismissal claims”);
	(c)	The claim for a guarantee payment pursuant to Part iii of the ERA 1996, which was entirely unrelated to the dismissal (“the guarantee payment claim”).

44.	The Henderson v. Henderson principle was stated by Wigram VC as follows at (1843) 3 Hare 110, 114-115:-

“[W]here a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

45.	It is common ground that the proper approach now applicable to the Henderson v Henderson principle was explained by Lord Bingham of Cornhill in his speech with which other members of the Appellate Committee agreed.  To understand the submissions, it is necessary to refer to some of the earlier cases which were considered by Lord Bingham especially as there is a dispute as to what has to be shown before an abuse can be found to exist.

46.	In Bradford & Bingley Building Society v. Seddon [1999] 1 WLR 1482, the Court of Appeal stated that the mere re-litigation of issues that could have been raised in earlier proceedings was not enough to render the subsequent proceedings an abuse of process.  Auld LJ giving the only reasoned judgment stated:-

“In my judgment, mere re-litigation, in circumstances not giving rise to cause of action or issue estoppels, does not necessarily give rise to abuse of process. Equally, the maintenance of a second claim which could have been part of an earlier one, or which conflicts with an earlier one, should not, per se, be regarded as an abuse of process. Rules of such rigidity would be to deny its very concept and purpose.”

47.	Auld LJ went onto state that something more than the fact that there was mere re-litigation of a claim which could have been part of an earlier claim was required to render a second claim an abuse of process.  Auld LJ characterised this as an “additional element”:-

“Some additional element is required, such as a collateral attack on a previous decision (see eg. Hunter; Bragg, per Kerr LJ and Sir David Cairns at page 137 and 139 respectively; and Ashmore), some dishonesty (see eg. Bragg, per Stephenson LJ at page 139; and Morris, per Potter LJ at pp. 13 and 14 of the transcript;), or successive actions amounting to unjust harassment (see eg. Manson v Vooght, CA (unreported) 3 November 1998, per May LJ at page 16 of the transcript).”

48.	Auld LJ reviewed the authorities and concluded that in the authorities in which claims had been struck out as being an abuse of process, it was possible to find an “additional element”: he pointed out that in MCC Proceeds v. Lehamn Bros. International (Europe) [1988] 2 BCLC 659, a claimant was prevented from attempting to re-open a pleaded claim which had not been pursued in a previous action. The ‘additional elements’ were as identified by Auld LJ in Seddon as being that:-

“The Claimant had for practical purposes abandoned the material claim in the first action, and the issue of title on which it would have turned in the second action against a different defendant claiming through the original defendant had been determined in the first action...”

49.	Similarly in Morris v. Wentworth-Stanley [1999] 2 WLR 470, a claim had been brought against a party who had been released from an earlier set of proceedings.  It was held that the releasing of the party from the earlier proceedings amounted to an “election” and breach of that “election” by bringing a further action amounted to “fraud”.

50.	Auld LJ did suggest in Seddon that one “additional element” might be successive actions amounting to “unjust harassment” of the defendant.  In support of that principle, Auld LJ cited Manson v. Vooght [1999] BPIR 376 as supporting the finding of “unjust harassment. The claim was brought by the managing director of a company, which had been placed into administrative receivership.  The claims were for breach of contract and conversion (in relation to antique furniture) and they were brought against the administrative receivers in their personal capacity.  Prior to the issuing of the proceedings:-
(2)	On 14 March, 1990 the claimant had issued proceedings against the administrative receivers for the payment of salary and expenses. That claim was tried over 5 days and the claim was dismissed. The claimant did not appeal;
(3)	There were directors disqualification proceedings brought against the claimant during which the claimant’s entitlement to salary and his ownership of certain antique furniture were dealt with;
(4)	The claimant issued proceedings against the liquidator, as he rejected the claimant’s proof of debt; and
(5)	The claimant had made a complaint against the administrative receivers to the Institute of Chartered Accountants who determined that there was no evidence to support the claimant’s claims. That decision was upheld on appeal.

51.	Manson v. Vooght was a case, therefore, in which there genuinely was unjust harassment of a party because there had been a whole series of actions in which the claimant had attempted to litigate and re-litigate the same issues again and again before the courts in various guises and also before professional bodies.  Mr Bryden contends that there is no need to prove an “additional element” in the light of what was said by Lord Bingham to whose speech I now turn.

52.	The House of Lords has now explained that this principle should not be applied in a dogmatic manner because in Johnson v. Gore-Wood [2002] 2 AC 1 and advocated a lesser stringent approach than Auld LJ.  Lord Bingham of Cornhill in a speech with which at least three other members of the Appellant Committee agreed confirmed that a broad, merits-based judgment is called for when he explained:-

“But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

53.	It is noteworthy that Lord Bingham:-
	(a)	Rejected Auld LJ’s contention that before finding abuse that it was necessary “to identify an additional element” before finding abuse;
	(b)	Rejected the contention that merely because a matter could have been raised in earlier proceedings means that raising it in later proceedings was “necessarily abusive”;
	(c)	Stated that the crucial question was to focus on the person said to be the abuser to see “whether in all the circumstances, a party is using or misusing or abusing the process of the court by seeking before it the issue which could have been raised before it”; 
	(d)	Required this focus to be “a broad merits-based judgment”.  This might well require evidence in many cases; and
	(e)	Explained that the onus is on the person alleging abuse.

54.	I now turn to the reasons which were given for dismissing the unfair reason dismissal claim.  The approach of the Employment Tribunal was that:-
	(a)	The Appellant sought a redundancy payment in the Salter action and in his witness statement in those proceedings, he states that he considered that he was “redundant”;
	(b)	Redundancy is a word commonly used and is generally understood to refer to a situation in which an employer has no work or not enough work for an employee.  “There is no reason to believe that the [appellant] was not aware of the basic meaning when he issued his first claim or when he swore to the truth of his witness statement in the first proceedings”;
	(c)	As suggested by the new claim the Claimant believes that he was not redundant, “there is no reason to think that his original view had anything to do with the existence or otherwise of professional advice” [57];
	(d)	“If the [Appellant] had believed when he issued his first claim that he was in fact dismissed for making a protected disclosure, or raising health and safety issues, or any of the other bases for his current claim, he could have said so whether or not he was represented” [57]; 
	(e)	“The [Appellant] did not raise any of these matters but rather maintained the claim for redundancy payment through a contested hearing.  Having lost that claim, he now seeks to bring fresh claims relating to his dismissal arguing that it was unfair for a variety of different reasons”[58]; 
	(f)	The Appellant was not considered to have acted dishonestly or to have sought deliberately to harass the Respondent [53]; and
	(g)	“The Respondent therefore now faces a second hearing on the question of the reason for the [Appellant’s] dismissal, brought on wholly different grounds. In all the circumstances of this particular case, the Tribunal finds that this is a misuse of the Tribunal system applying the tests laid down in Johnson and Thomas (supra)” [58].

55.	There are four reasons which individually and cumulatively satisfy me that this reasoning is flawed.  First, the Seymour Tribunal has made findings that “the respondent has been unjustly subjected to two sets of proceedings relating to the [appellant]’s dismissal when it should only have been subjected to one” [54].  There was also a finding that the Appellant has not “sought deliberately to harass the respondent”.  These two points suggests that the abuse claim succeeds simply because the matters in the second claim should have been brought in the first one.

56.	This appears to run contrary to what Lord Bingham said in the Johnson case which was (with emphasis added) that it would be “wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.  That is to adopt too dogmatic approach to what should in my opinion be a broad – merits based judgment which takes account of the public and private interests involved”. He also said that “there will rarely be a finding of abuse unless the later proceedings involve what the court regards as an unjust harassment of a party”.  The onus of this was on the Respondent but there was no evidence of any harassment other than having to face two proceedings but that is not enough.  Indeed it was not pleaded by the Respondent that there has been harassment.

57.	A second reason why I cannot accept the reasoning of the Employment Tribunal is that the basis of it was that the Appellant was advancing complaints before the Seymour Tribunal which were inconsistent with complaints before the Salter Tribunal.

58.	As I have explained, the Appellant’s claim for redundancy payment was not presented as a claim for redundancy payment on the basis of dismissal but instead was invented as a claim for redundancy payment on “layoff” pursuant to section 135(1)(b) of the ERA 1996.  This is not a valid point because as I have already explained that such a conclusion that there was dismissal on grounds of redundancy fell outside the jurisdiction of the Employment Tribunal because it was premature.

59.	Third, the reasoning of the Employment Judge proceeds on the basis that if the unfair dismissal claims had been included in the first action, there would have been no need for a second claim.  That is not correct because, as I explained in paragraph 2, it is accepted that some claims arising from the dismissal of the Claimant will have to be determined in the second action.  So this is not a case where the unfair dismissal claim would be the only reason for a second hearing.  This is a factor of importance in showing why pursuing the unfair dismissal claims in the second action is not an abuse.  This factor should have been put in the balance but this did not happen.

60.	Fourth, at the Salter Tribunal hearing, the judgment states that “only representatives were present” [4] yet the Employment Judge reached findings that “there is no reason to believe” that the Appellant first “did not raise the claims he now seeks to bring by reason of the fact that the was acting in person” or second “was not aware of the basic meaning of redundancy”.  The Employment Judge heard no evidence about this.  If the Employment Judge had wished to do so, my provisional view is that he should have given the Appellant the opportunity to give evidence on these issues.  I should say that this matter was not raised at the hearing of the appeal and my view is only a provisional one on this matter.

61.	For all those reasons I have concluded that the appeal against the abuse argument in respect of the unfair reasons for dismissal claims has to be allowed because the Employment Tribunal failed to apply the correct principles and not because of perversity as was contended by Mr Bryden as being the basis of the Claimant’s challenge to the abuse decision.

62.	I now turn to the other unfair dismissal claims in which the reasoning of the Tribunal is again that “the respondent therefore now faces a second hearing on the question of the reason for the claimant’s dismissal”.

63.	I regret to say that I am unable to understand this because these claims do not depend on the establishment of an unfair reason and the only reason why these claims were struck out is they could have been pursued at an earlier date.  The argument appears to be that the act of bringing a second claim which could have been brought in the first action justifies an order striking out the claim as a Henderson v Henderson abuse, notwithstanding what was said about it by Lord Bingham.  It is also noteworthy that as in the unfair reasons dismissal claims there has been no pleading of harassment at all thus the reasoning in respect of the other unfair dismissal claims is flawed.

64.	Counsel sensibly agreed that if I were to reach this conclusion, then I should consider the matter afresh rather than to remitting it to the Tribunal not merely to save costs but also to because I am in as good a position as an Employment Tribunal to determine the matter especially as I have found there is no basis for finding either issue estoppel or Henderson v Henderson abuse.  I therefore order that the Appellant’s unfair dismissal and age discrimination claims should proceed to a substantive hearing.

The Cross-Appeal Issue
65.	The Respondent contends that the claim for guarantee payments should have been struck out but the Employment Tribunal wrongly failed to do so.  The reasoning of the Employment Tribunal is that it has not been shown that these constitute an abuse of process “as although [this claim] could have been brought at the same time as earlier proceedings there is no unjust harassment of the respondent in the [appellant’s] failure to do so”.  It is also said by the Employment Tribunal first that the issue of entitlement to a guarantee payment was not a matter which had been considered in the previous proceeding and thus did not constitute an abuse in all the circumstances of the case and second that as an additional factor this claim was one with which the Claimant as a litigant in person could not reasonably be expected to be familiar or even be aware of in the absence of legal advice.

66.	The case for the Respondent is the finding that there was no unjust harassment in respect of the guarantee payment is neither reasonable nor supported by evidence.  It is also said that the Tribunal does not give sufficient reasons for its decision and therefore its decision in respect of this did not comply with the principle in Meek v Birmingham City Council [1987] IRLR 250 [43]-[58].

67.	In my view, the Employment Tribunal was correct in holding that pursuing the guarantee payment claim was not an abuse.  The only reason why it could have been an abuse was that it was not claimed in front of the Salter Tribunal.  As I have already explained, that would not in itself amount to an abuse as the Tribunal have found.  None of the Respondent’s reasons show that this was flawed reasoning.

68.	The Respondent also takes exception to the fact that the Tribunal found that the fact that the Claimant had conducted proceedings in person was relevant but it is clear that factor is merely put forward as an additional reason for the decision of the Employment Tribunal.  In many ways the approach of the Employment Tribunal in relation to guarantee payment is the one which I consider that they ought to have adopted in relation to other claims and in particular that the mere fact that the Respondent would face a second round of cases is not enough to justify a finding of abuse especially as it is common ground there had to be a second hearing in respect of the claims which I have set out in paragraph 2 above.

Conclusion
69.	I have had the advantage of much more detailed submissions than the Employment Tribunal had and I suspect that if they it had had the benefit of those submissions and sight of many of the authorities referred to in this judgment, its decision might have been different.  For the reasons which I have sought to explain, the appeal must be allowed from the clear decision of the Employment Tribunal both in relation to both issue estoppel and the Henderson v Henderson abuse issue and I also dismiss the cross-appeal.  Before parting with this case, I must express my gratitude to Mr Forshaw for acting pro bono.