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Issue Estoppel

  • Posted

[Thanks to Ed McFarlane of EEF for preparing this case summary]

The EAT (Silber J) has handed down its decision in Foster v Bon Groundwork, which is authority for the propositions that:

  • The res judicata doctrine, creating an estoppel barring multiple claims from the same cause of action does not apply if a finding in the first claim determined is not a necessary ingredient of a subsequent claim.
  • A finding made when a Tribunal has no jurisdiction to hear a claim will not create an estoppel against subsequent claims.
  • The rule in Henderson v Henderson "a safeguard against abuse of process that requires parties to put their whole case forward in one claim" is not engaged where there is no oppressive or abusive conduct by a party failing to do so.

The 77 year-old Claimant was laid off, and whilst still employed put in an ET claim for redundancy pay, implying that he had been dismissed, and this claim failed. He was then dismissed by retirement and put in a second claim, alleging unfair dismissal under various bases as well as a claim for guarantee pay. 

The Unfair Dismissal element of the second claim was struck out as an abuse of process, relying on the dismissal of the previous claim for redundancy pay. 

The employee's appeal succeeded, the second claim was not res judicata since the first claim for redundancy pay was not a necessary ingredient of the Unfair Dismissal complaint, and in any event as the first claim was premature, so the lack of jurisdiction prevented an estoppel, and the Claimant's conduct was not, on the facts, abusive or oppressive under Henderson v Henderson. 

The Judgment contains a lucid review of various authorities dealing with estoppel and abuse of process.