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Overlapping ET and High Court Claims

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[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Should employment tribunal proceedings be stayed when there are threatened High Court proceedings arising from the same facts, but which have not yet been issued?

Yes, given certain conditions, says the EAT (HHJ McMullen) in PaymentShield v Halstead

H brought employment tribunal proceedings. His solicitors then sent a letter pursuant to the CPR Practice Direction on Pre-Action Conduct threatening High Court proceedings and attaching draft particulars of claim. The employer sought a stay of the tribunal proceedings. The claimant at first agreed but then (wanting to fund the High Court case from the proceeds of the tribunal case) applied for the tribunal proceedings to be reinstated. Two employment judges agreed with him on the ground that the High Court proceedings had not yet been issued. The employer appealed.

The EAT considered the stay should be granted. The principles to be applied in granting a stay were to be found in HHJ McMullen's own decision in Mindimaxnox LLP v Gover (EAT/0225/10). These include where there are complex issues, overlap and where the High Court might be "straitjacketed" by an employment tribunal's finding of fact. And they apply even where the proceedings have not yet been issued. The indication of proceedings in the present case was more than "a glint in the claimant's eye". The pre-action protocol was an important part of the CPR and the claimant's conduct was a clear indication of his intention to claim relief in the High Court.