When does an out of time claim in the ET have the same effect in terms of estoppel in the High Court?
In Eyad Zaki Nayif v. The High Commission of Brunei Darussalam [2014] EWCA Civ 1521, the Court of Appeal overturned Bean, J. on a second appeal.
Bean, J. had upheld the decision of Master Leslie who had ruled that the Claimant’s case should be struck out as the Claimant was estopped from bringing a High Court claim for negligence arising out of alleged bullying, harassment and victimisation whilst working for the Defendant High Commission. This was because the Claimant had already brought a claim in the Employment Tribunal out of time and that claim had been dismissed because the Employment Tribunal found that it was not just and equitable to allow the claim to proceed out of time.
The claim is the first claim where the Court of Appeal has ruled in a situation where the Employment Tribunal claim has been out of time as opposed to the other authorities where the claim has either been withdrawn by the Claimant or settled and then the Claimant has sought to bring fresh proceedings for further damages in the civil Court.
Background
The Claimant worked for the High Commission as a chauffeur for some years. He alleges he was bullied at work, victimised and harassed and his complaints to the High Commission did not meet with any proper response. As a result, he claims that he suffered a depressive disorder which prevented him from working.
A claim was brought in the Employment Tribunal over a year out of time alleging race discrimination on the basis of these facts. The Employment Tribunal ruled that there was no real excuse for the claim being brought out of time and it was further noted that it was difficult to see how the acts complained of amounted to race discrimination. For these reasons, the Employment Tribunal refused to waive the time limit and dismissed the claim. An attempt to appeal that decision to the Employment Appeal Tribunal was unsuccessful. Proceedings were then brought in the High Court for negligence based on identical facts.
Points of law
There are a number of authorities and in particular Lennon v. Birmingham City Council which held that in circumstances where someone has brought a claim in the Employment Tribunal but that claim has been dismissed, the Claimant was estopped from bringing further proceedings in the High Court or the County Court for damages. Furthermore, preventing the Claimant from bringing a further claim was not a breach of the Claimant’s Article 6 Rights of Access to a Court as the Claimant had already had the opportunity of having access to a Court or Tribunal in the Employment Tribunal. In this case, the Claimant sought to distinguish those claims because he did not withdraw or settle his claim and, if his claim was out of time, then the Employment Tribunal had no jurisdiction to hear the claim.
Consequently, the Claimant argued that it would not be right or fair to estop him from bringing a further claim in the High Court, as he had not had his “first bite of the cherry” and there would be a breach of his Article 6 Rights of Access to a Court or Tribunal if he was estopped. The Court of Appeal agreed with this submission and allowed the appeal. The Court of Appeal took the view that the mere fact that the proceedings had been dismissed was not in itself sufficient to found an estoppel.
One had to look at the reason why the claim was dismissed in accordance with the judgment of the Court of Appeal in the case of Ako v. Rothschild. If the reality of the situation was that the Claimant had never had the opportunity of a hearing in the Employment Tribunal then he would not be estopped from bringing further proceedings. The situation may be different if there had been a hearing on the merits as to whether the claim was in reality out of time but in this case that had not taken place. As the Order of the Courts below effectively denied him the right of access to a Court or Tribunal, that would amount to a breach of his Article 6 Rights of Access.
This is the first ruling by the Court of Appeal as to whether the bringing of an Employment Tribunal case out of time had the same effect as bringing a case in time and then withdrawing it or settling it.
Robert Glancy QC acted for the claimant/appellant.
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