The Crossover between Personal Injury and Employment Law. Notes of a talk given by Matthew White, St John s Chambers, Bristol, on 10 th January 2012.

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1 The Crossover between Personal Injury and Employment Law Notes of a talk given by Matthew White, St John s Chambers, Bristol, on 10 th January PRELIMINARY 1. It is not uncommon for a client to have legal issues involving a crossover between employment and personal injury law. The aim of this talk is to equip personal injury and employment lawyers with knowledge of the essentials of the law where the two fields cross over, to enable them to give complete and accurate advice to the client with a crossover problem. 2. This is not an advice. Please do not treat it as containing the definitive answers on crossover issues:- there is a lot to both PI and employment law which cannot be covered in a 1 hour talk. The aim here is to identify issues which you might need to look up in more detailed sources. 3. Note at the outset that a worker might be an employee for some purposes but not for others. THE BASICS PI law for an Employment Lawyer 4. If D owes C a duty of care and injures C in breach of that duty, C has a potential claim against D. The most common situations in an employer/ employee setting are:- Injury caused through breach of a regulation (e.g. Manual Handling Operations Regulations 1992, Workplace (Health, Safety and Welfare) Regulations 1992, etc). Injury caused through negligence. 5. The employee can be found to be partially responsible (called contributory negligence in civil claims; this is essentially the same idea as contributory fault in the ET). PI/ employment crossover. Matthew White 10/1/12 1

2 6. The injury sustained can be purely physical, purely psychological or a combination of physical and psychological. You need to be a little careful about purely psychological/psychiatric injuries:- (6.1) If the only injury sustained is psychological/psychiatric, C generally has to establish that (s)he has suffered from a recognisable psychiatric illness which is not merely grief, distress or any other normal emotion, but a positive psychiatric illness (McLoughlin v. O Brian [1983]1 AC 431 per Lord Bridge at 431). There is no statutory definition of recognisable psychiatric illness, and there is unlikely to be one. That can cause problems. Psychiatrists tend to try to classify a mental condition by reference to one of two major diagnostic manuals:- The Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV), or the ICD-10 Classification of Mental and Behavioural Disorders: Clinical Description and Diagnostic Guidelines, Lawyers need to be careful not to think that if a condition is described in one of those publications the threshold test is met and vice versa. By way of example:- (a) Acute Stress Reaction is described in both DSM-IV and ICD-10. The 1996 Oxford Textbook of Psychiatry describes this condition, however, as a normal response to highly stressful events. (b) On the other hand Pathological Grief Reaction appears in neither DSM-IV nor ICD-10, but has been held to satisfy the test (Vernon v. Bosley (No 1) [1997]1 All ER 577; Tredgett v. Bexley HA [1994]5 Med LR 178). (6.2) A mistake sometimes made by PI lawyers is to think that the McLoughlin requirement of a recognisable psychiatric condition also applies where there has been physical injury (thus, it is wrongly argued, the whiplashed claimant whose psychological reaction is sub-clinical is not entitled to damages in respect of the additional suffering occasioned by the sub-clinical psychiatric PI/ employment crossover. Matthew White 10/1/12 2

3 reaction). In fact, the mental anxiety acts as an aggravator to the physical injury. 7. Loss is assessed to (so far as is reasonably possible) put C in the position that (s)he would have been in but for the wrong. Typically damages in a PI claim are made up as follows:- (i) General damages Damages for pain, suffering and loss of amenity (assessed by reference to the Judicial Studies Board guidelines and previous comparable cases). An award for handicap on the labour market where appropriate (if C is at risk of being on the open labour market before retirement and will be disadvantaged by reason of his injury, damages can be awarded to compensate for that). (ii) Special damages These are specifically assessable financial losses such as loss of earnings, loss of pension, cost of medication, etc. Care costs often form part of claims (whether the care was provided gratuitously or at a commercial cost). The Defendant can deduct certain benefits paid from the compensation for relevant heads of claim (but the Defendant has to pay the deducted sum back to the state). 8. Miscellaneous rules for the assessment of damage apply as in the ET:- the egg-shell skull rule applies, C must mitigate his/ her loss in the usual way, the breach of duty must be proved to have caused the loss. 9. Note that in a PI claim, generally injury must be foreseeable. That can be a significant difference between the jurisdictions. 10. Possibly the most common crossover area between PI and employment law is stress at work; that is dealt with below. PI/ employment crossover. Matthew White 10/1/12 3

4 Employment Law for a PI Lawyer 11. Note that even more than with PI law, a little knowledge is a dangerous thing. The aim here is to sketch the basics, but there are plenty of exceptions and traps for the unwary. 12. There are three main types of claim which a PI lawyer needs to understand:- (i) Unfair dismissal; (ii) Wrongful dismissal; and (iii) Discrimination. Unfair dismissal 13. This is a creature of statute. 14. Requirements for bringing a claim before the Tribunal (which has sole jurisdiction):- (i) Usually a 3 month limitation period. Time extendable if it was not reasonably practicable to present the claim in time. (ii) Claimant must have been employed by respondent under a contract of employment. Save for some exceptions the employment must have lasted for at least a year before dismissal. (iii) Claimant must have been dismissed. Sometimes this is not an issue. It can be in dispute in constructive dismissal cases. This is shorthand for termination of the contract by the employee in circumstances where (s)he is entitled to terminate by reason of the employer s repudiatory breach of contract. 15. If there is a qualifying dismissal, the employer must establish that it was for a fair reason (incapability, lack of qualifications, misconduct, redundancy, retirement, breach of statutory provisions, or some other substantial reason which would justify dismissal ). Assuming that the reason for dismissal is potentially fair, the question is whether or not the dismissal was fair in the circumstances:- Did the employer act reasonably PI/ employment crossover. Matthew White 10/1/12 4

5 in all the circumstances in treating the reason for dismissal as sufficiently serious to dismiss? (This can, and often does include consideration of whether or not procedure was fair, an investigation of alleged misconduct was fair, selection for redundancy was fair and/or whether dismissal was within the range of reasonable responses for the employer). 16. A finding of unfair dismissal can lead to an order for reinstatement or reengagement and/or damages. Damages are assessed as a basic award (fixed by reference to the employee s age, length of service and weekly pay) and a compensatory award. Compensation is assessed on the basis of what is just and equitable. In practical terms, that means a similar approach to a loss of earnings claim in PI:- expected earnings less actual earnings (subject to the usual mitigation rule). The Tribunal will award other special damages in the same way:- costs of getting a new job; loss of company car/health plan; pension loss; nominal sum to reflect loss of statutory rights (i.e. the need to be employed for 12 months before an unfair dismissal claim can be brought in new employment). There are recoupment of benefits provisions which are similar to CRU provisions. The notion of contributory fault applies as contributory negligence would in a PI claim. Failure to follow an ACAS code of practice can result in an uplift to or reduction in damages. The rules on causation in the ET have become rather tangled, but in broad terms the employer can contend that the employee would probably have been fairly dismissed if he had not been unfairly dismissed. There is a statutory cap on awards for unfair dismissal (currently 68,400, 72,300 from 1/2/12). 17. Note that damages for unfair dismissal do not include non-pecuniary loss (see Dunnachie v. Kingston-upon-Hull City Council [2004] UKHL 36, [2005]1 AC 226):- hence the absence of remedy where psychiatric injury arises from dismissal - see below. PI/ employment crossover. Matthew White 10/1/12 5

6 Wrongful dismissal 18. If the employee is dismissed in a way which breaches the contract of employment, that is wrongful dismissal. The claim is in contract. Typically the claim arises when the employee is dismissed without cause and without full notice (or pay in lieu of notice). The limit of the Employment Tribunal s jurisdiction is 25,000 (but larger claims can be sustained in the civil courts - see below). 19. Note that a wrongful dismissal claim is one type of contractual claim. The ET has jurisdiction over contracts connected with employment providing that the claim arose or was outstanding on the termination of employment. The jurisdiction limit is 25,000 for all contract claims. PI claims are excluded from the contractual jurisdiction. Discrimination 20. A dismissal can be an act of discrimination (so the same facts can give rise to claims for unfair dismissal, wrongful dismissal and discrimination). Discrimination law has been shaken up recently by the Equality Act Essentially an employer cannot (subject, as always, to some exceptions) discriminate on grounds of 9 protected characteristics including age, disability, race, and sex. Discrimination can be direct (i.e. less favourable treatment on the grounds of the characteristic in question), or, in appropriate circumstances, indirect (i.e. the employer applies a provision, criteria or practice to everyone, but the proportion of e.g. women who can comply is smaller and there is no justification for the practice). Additionally discrimination can take the form of victimization or harassment. A failure to make reasonable adjustments can be disability discrimination. It is hard to avoid vicarious liability for discrimination. A real problem for employers is that once a claimant has raised facts from which an inference of discrimination could be drawn, the burden of proof is reversed. The limitation period is 3 months, then extendable on a just and equitable basis (a bit like Limitation Act 1980 s.33). Note that there is no upper limit to the award for damages for discrimination in the ET. PI/ employment crossover. Matthew White 10/1/12 6

7 21. It is worth giving separate mention to what disability means, as it has potential to be relevant to PI practitioners not only because Ogden 6 (and 7) has adopted the definition. A disability is a mental or physical impairment which has a substantial and long-term adverse impact on ability to carry out normal day-to-day activities (Equality Act 2010 s.6). We are currently in a state of flux between the old guidance on the meaning of disability and expected new guidance. Some pointers from the old law:- Long-term effect means lasted or likely to last at least 12 months (and if it doesn t last that long but is likely to recur, the clock keeps ticking). Likely does not mean over 50% chance, but could well happen (SCA Packaging v. Boyle [2009] UKHL 37). Normal day-to-day activities are affected only if one of the following is affected:- (a) mobility; (b) manual dexterity; (c) physical coordination; (d) continence; (e) the ability to lift, carry or otherwise move everyday objects; (f) speech, hearing or eyesight; (g) memory or ability to concentrate, learn or understand; or (h) perception of the risk of physical danger. However, the fact that the impaired activity is not in the list does not exclude a finding of disability (Hewett v. Motorola [2004] IRLR 545). Substantial means more than minor or trivial. Whilst it will surprise PI lawyers, lack of knowledge of the disability is no defence (save possibly in an adjustments claim) Goodwin v. Patent Office [1999] IRLR 4 gives guidance. 22. Damages in discrimination claims are assessed in like manner to any other claim in tort:- so far as possible C should be put in the position that (s)he would have been in but for the unlawful act. The egg-shell skull rule applies. Whilst injury has to be foreseeable for damages to be recoverable at common law, that is not the case in discrimination claims involving harassment on grounds of race (see Essa v. Laing Ltd [2004] EWCA Civ 02, [2004] IRLR 313), and the logic of this decision would apply to other PI/ employment crossover. Matthew White 10/1/12 7

8 forms of discrimination. The injury has to be proved to flow from the discriminatory act. The Employment Tribunal takes a less scientific approach than the civil courts when it comes to discounting awards on the basis that injury is not solely attributable to the discrimination (e.g. in instances of a pre-existing problem or contributory facts). See by way of example HMPS v. Salmon [2001] IRLR In a discrimination claim the ET has jurisdiction to hear claims for damages which include claims indistinguishable from PI claims (Sheriff v. Klyne Tugs [1999] ICR 1170). Thus in a discrimination claim C might recover:- (i) Damages for PSLA (typically a psychiatric injury) caused by the discrimination; (ii) Special damages as in a PI claim (although the ET doesn t call them special damages ); and (iii) An award for injury to feelings. The last of the above points will seem odd to a PI lawyer. Claimants who are discriminated against can claim damages for the upset. Awards are supposed to bear some general similarity to the levels in PI cases. The clearest advice on valuation came from the Court of Appeal in Vento v. Chief Constable of West Yorkshire Police [2003] ICR 318, (2003) IRLR 102. The bands of compensation were updated in Da Bell v NSPCC [2010] IRLR 19:- a lower band of 750 to 6,000 (for less serious cases such as an isolated or one-off occurrence), a middle band of 6,000 to 18,000 for serious cases which don t merit an award in the top band, and the top band of 18,000 to 30,000 (for the most serious cases such as where there has been a lengthy campaign of discriminatory harassment). 24. An award for injury to feelings includes compensation for loss of congenial employment (MoD v. Cannock [1995] 2 All ER 449, [1994] ICR 918). PI/ employment crossover. Matthew White 10/1/12 8

9 Other 25. There are various other claims which can be brought in the ET, but they will be less likely to cross your radar. Pension loss 26. One other basic of employment law which PI lawyers might find useful relates to calculating damages for loss of pension. There is a publication entitled Employment Tribunals Guidelines on Compensation for Loss of Pension Rights. It is a very detailed guide to how to work out what loss of pension has been suffered. Deployment of the method in the Guidelines sometimes results in a larger pension loss figure than is arrived at in civil claims using the traditional approach to calculation. It is worth taking some time to read the Guidelines if you are ever struggling with a pension loss claim. PI/ employment crossover. Matthew White 10/1/12 9

10 STRESS AT WORK 27. The most obvious area where PI and employment law cross over is in claims for stress. Excluded claims 28. Courts cannot award damages for loss arising from the manner of dismissal. See Johnson v. Unisys [2001] UKHL 13, (2003) 1 AC 518, [2001]2 WLR 1076, [2001] ICR 480. The rationale of the decision is that there is a statutory scheme governing remedies on dismissal, and the courts ought not to develop a parallel common law remedy. Thus if an employee is psychiatrically injured by the manner of their dismissal, (s)he has no remedy in respect of that injury (since it is covered by neither the law of wrongful nor unfair dismissal). 29. From the above rationale it will be observed that it is only the dismissal itself in respect of which there is a limitation on entitlement to damages. Accordingly if injury is sustained by reason of pre-dismissal conduct of the employer (perhaps putting C through the mill in the investigation (rather than dismissal) process), that can sound in damages (see Eastwood v. Magnox and McCabe v. Cornwall CC [2004]UKHL 35, (2005) 1 AC 503, (2004) 3 WLR 322, (2004) 3 All ER 991, (2004) ICR 1064, (2004) IRLR 733). Thus a claimant psychiatrically injured by the manner of their sacking has no remedy. That said, if a cause of action had already arisen, the subsequent sacking does not defeat it. 30. A recent attempt to get around the Johnson exclusion has failed at the Supreme Court in Edwards v. Chesterfield Royal Hospital [2011] UKSC 58 (a 4:3 decision in favour of the employers, overturning the Court of Appeal). Cs were summarily dismissed in breach of express terms of their contracts of employment relating to disciplinary procedures. They brought claims for breach of contract. The Supreme Court held that the allegedly breached terms were not ordinary contractual terms and that PI/ employment crossover. Matthew White 10/1/12 10

11 Parliamentary intention was to limit an unfairly dismissed employees remedy to that provided by the statutory framework. 31. Edwards also serves to show the difficulty of deciding whether or not a claim falls within the Johnson exclusion area. Lords Kerr and Wilson would have allowed Edwards claim to proceed as falling outside of the exclusion area (on the basis that a disciplinary panel s finding of fact separately (a) damaged Edwards reputation; and (b) led to his dismissal, the loss from the damaged reputation not falling within the Johnson exclusion area). Civil claims Negligence 32. The most common type of claim for personal injury caused by stress at work is in negligence (albeit sometimes underpinned by a statutory obligation to risk assess). Some essential points are:- The duty on an employer is to take reasonable care for the safety of employees. Claimants have to prove that their psychiatric injury was foreseeable to the employer. This can be hard. Oddly, the employer who does most to try to avoid stress at work can find itself weakened when it comes to defending a claim on the grounds of unforeseeability. There are no occupations which give rise to the presumption of foreseeability of psychiatric harm. One needs to look at the occupation and the personal characteristics of the claimant. A claimant telling management that (s)he is struggling to cope will probably fall short of putting the employer on notice of a foreseeable risk of injury. Breach of the Working Time Regulations does not mean that there is a foreseeable risk of injury (see Sayers v. Cambridgeshire County Council [2006] EWHC 2029, [2007] IRLR 29). If C gets over the foreseeability hurdle, it is still necessary to establish that there has been a breach of duty. PI/ employment crossover. Matthew White 10/1/12 11

12 Causation is often an issue. If considering a claim of this nature, essential reading is paragraph 43 of the decision in Hatton v. Sutherland [2002]2 All ER 1 (see too the House of Lords in Barber v. Somerset CC [2004]1 WLR 1089). 33. Similar common law principles apply to bullying/abuse at work. Particular problems for claimants in many such cases include:- Often the alleged bullying is no more than people not getting on. Commonly, mutual complaints of bullying are made. An employer is thus in a difficult position and a court will be slow to criticise. Protection from Harassment Act 34. For a time it appeared as though the Protection from Harassment Act 1997 was going to have a very significant impact on bullying-type claims. Section 1 of the Protection from Harassment Act 1997 provides that a person must not pursue a course of conduct which amounts to harassment of another and which (s)he knows or ought to know amounts to harassment, and s.3 imposes civil liability for breach. Some advantages of a claim under the Act are:- There is no need to establish foreseeability of harm (a major stumbling block in a civil claim). The limitation period is 6 years. The damage which is compensable under the Act is wider than at common law, since mere anxiety sounds in damages (see s.3(2) of the Act). There is no defence that the employer took all reasonably practicable steps to prevent the harassment. Not only employees are protected (customers etc are too). 35. The Act does not define harassment. Assistance on the meaning is found in Thomas v. News Group Newspapers [2001] EWCA Civ 1233 at para 30. There must have been conduct (a) targeted at C; (b) calculated to alarm or distress; (c) which is oppressive and unreasonable. Also note PI/ employment crossover. Matthew White 10/1/12 12

13 that there must be a course of conduct which (by s.7(3)) means conduct occurring on at least 2 occasions. (See too Green v. DB Group Services [2006] EWHC 1898 at para 14.) 36. There was significant excitement about this Act following Majrowski v. Guy s & St Thomas s NHS Trust [2007]1 AC 224. It was determined that an employer could be vicariously liable for an employee s breach of the Act. With that good news for claimants came some less good news:- Majrowski also made clear that Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under s The effects of Majrowski have not (yet, at least) been as significant as was initially expected. In Conn v. Sunderland City Council [2007] EWCA Civ 1492, [2008] IRLR 324 the claim failed because whilst there was one incident when the relevant employee threatened to hit the claimant (and that was sufficiently oppressive conduct to constitute harassment), the other incident complained of (in which the employee shouted and threatened to smash a window) was not sufficiently serious to attract criminal sanction, and accordingly there was not a course of conduct since that requires 2 instances which both cross the threshold of seriousness. 38. Insofar as it is possible to see a trend, however, things appear to be getting easier for claimants:- In Green v. DB Group Services (above) mean and spiteful behaviour was found to constitute harassment. Conn came next and the shouting/ threatening to smash a window was not enough to constitute harassment (perhaps suggesting that things were getting harder for claimants). PI/ employment crossover. Matthew White 10/1/12 13

14 In Ferguson v. British Gas Trading [2009] EWCA Civ 46 it was held (in a strike out application) that it was at least strongly arguable that British Gas sending automatically computer-generated bills and threatening letters to a former customer was harassment covered by the Act. In Veakins v. Kier Islington [2009] EWCA Civ 1288, the trial judge found that allegations of D picking on C did not cross into the realms of being sufficient to sustain criminal liability it plainly does not, very largely because I cannot see that any sensible prosecuting authority would pursue these allegations criminally; or, even if a prosecution were somehow brought, say perhaps by the claimant herself in a private prosecution, I cannot see that any prosecution would suffer any fate other than to be brought to an early end as an abuse of process. The Court of Appeal held that the trial judge applied the wrong test and that his focus ought to have been on whether or not the conduct was oppressive and unreasonable. The account of victimisation, demoralisation and the reduction of a substantially reasonable and usually robust woman to a state of clinical depression is not simply an account of unattractive and unreasonable conduct (in Lord Nicholl s [sic] words) or the ordinary banter and badinage of life (in Baroness Hale s words). It selfevidently crosses the line into conduct which is oppressive and unreasonable. It may be that, if asked, a prosecutor would be reluctant to prosecute but that is not the consideration, which is whether the conduct is of an order which would sustain criminal liability. I consider that, in the event of a prosecution, the proven conduct would be sufficient to establish criminal liability. I do not accept that, in a criminal court, the proceedings would properly be stayed as an abuse of process. 39. I suspect that the most important lesson to take from Veakins is encapsulated in paragraph 11 (per Maurice Kay LJ) since Majrowski, PI/ employment crossover. Matthew White 10/1/12 14

15 courts have been enjoined to consider whether the conduct complained of is oppressive and unacceptable as opposed to merely unattractive, unreasonable or regrettable. The primary focus is on whether the conduct is oppressive and unacceptable, albeit the court must keep in mind that it must be of an order which would sustain criminal liability. That feels like something of a moving of the goalposts to me. 40. The Court of Appeal appear to have tried to limit the effect of the decision in Veakins with this (para 17, Maurice Kay LJ again):- Since Hatton v Sutherland [2002] EWCA Civ 76, [2002] ICR 613, it has become more difficult for an employee to succeed in a negligence action based on stress at work. It seems that this may be causing more employees to seek redress by reference to harassment and the statutory tort, although it is doubtful whether the legislature had the workplace in mind when passing an Act that was principally directed at stalking and similar cases. Nevertheless, there is nothing in the language of the Act which excludes workplace harassment. It should not be thought from this unusually one-sided case that stress at work will often give rise to liability for harassment. I have found the conduct in this case to be oppressive and unacceptable but I have done so in circumstances where I have also described it as extraordinary. I do not expect that many workplace cases will give rise to this liability. It is far more likely that, in the great majority of cases, the remedy for highhanded or discriminatory misconduct by or on behalf of an employer will be more fittingly in the Employment Tribunal. Claims in the Employment Tribunal 41. The Tribunal has no jurisdiction in relation to negligence claims or Protection from Harassment Act claims. The crossover arises because a claim for injury can be tacked on to a discrimination claim as explained above (and the ET has exclusive jurisdiction over discrimination claims in the employment field). Some key differences between common law and ET claims are:- The time limit is much shorter in the ET. The ET is not concerned with foreseeability (which can be a problematic hurdle in a negligence claim). Rather in the ET the question is whether or not the employer caused the injury (by the discrimination). PI/ employment crossover. Matthew White 10/1/12 15

16 There might be a defence available in the ET which is not available in a Protection from Harassment Act claim. Section 109(4) of the Equality Act 2010 provides a defence if the employer can prove that he took such steps as were reasonably practicable to prevent the employee from acting in a discriminatory way. PI/ employment crossover. Matthew White 10/1/12 16

17 OTHER KNOWLEDGE FOR BOTH DISCIPLINES Summary of main jurisdictions 42. The civil courts have exclusive jurisdiction over:- (i) Common law claims (including negligence). (ii) Claims for breach of statutory duty where the ET has not been expressly given jurisdiction (so the civil courts have exclusive jurisdiction over, amongst other things, 6-pack claims). (iii) Equity. (iv) Contract claims:- exceeding 25,000; relating to restrictive covenants/confidential information; and/or for PI. (v) Claims for discrimination outside the employment field. 43. The ET has exclusive jurisdiction over:- (i) Discrimination in the employment field on grounds prohibited by various statutes (race, sex, disability, age etc). Damages for personal injury can be claimed in a discrimination claim before the ET. (ii) Unfair dismissal. 44. There is shared jurisdiction over claims for breach of the contract of employment for less than 25,000 (provided that the conditions of the Employment Tribunals Extension of Jurisdiction Order 1994 are met:- main points are that the claim has to arise or be outstanding on termination of employment and the limitation period is 3 months). 45. Additionally, the same set of facts might give rise to various causes of action, some of which would be justiciable in the courts, some in the ET. PI/ employment crossover. Matthew White 10/1/12 17

18 The Court and ET policing jurisdictional choice 46. In Abdulla & Others v. Birmingham City Council [2011] EWCA Civ 1412 Cs issued equal pay claims in the High Court outside of the time limit for bringing the claims in the ET. The employer applied to strike out the claims on the basis that the court had a statutory discretion to strike out an equal pay claim if it could more conveniently be disposed of by an ET. The judge and Court of Appeal refused to strike out the claims on that basis:- it could not be more convenient to require Cs to proceed in the ET where their claims were already out of time. The court treated this as an attempt to use a discretion conferred for the convenient allocation of judicial business to stifle claims. 47. In Halstead v. Paymentshield Group Holdings [2011] UKEAT/0470/11/DM (HHJ McMullen QC, 9/9/11) the EAT stayed an ET claim in circumstances in which C had also sent a pre-action protocol letter intimating a High Court claim. It was held that the fact that the High Court claim had not been issued did not operate so as to make the stay inappropriate. Rather, applying the principles in Mindimaxnox LLP v Gover & Ho UKEAT/0225/DA, a stay of the ET proceedings ought to be ordered. The Mindimaxnox principles include the facts that complex factual matters (particularly with a lot of documentation) are better addressed in the High Court, and where there is factual overlap it is generally preferable for the ET to have the High Court Judge s decision first. Res judicata, estoppel, abuse of process etc Estoppel 48. It might be that C has causes of action some of which fall to be litigated in the ET, some in the courts. The first decision made by tribunal/court might well give rise to an issue estoppel or res judicata (i.e. cause of action estoppel) in subsequent proceedings. Note that there must be a final decision on the merits, between the same parties (or privies to the original parties), and the subject matter must be the same (same cause of action for cause of action estoppel, same issue for issue estoppel (the PI/ employment crossover. Matthew White 10/1/12 18

19 issue also has to have been necessarily determined in the first case - a party is not bound by an unnecessary finding of fact)). 49. There is a significant risk area for claimants here. If C starts proceedings in the ET but then decides to abandon them to pursue a civil claim, C might well withdraw the ET claim and it might then be dismissed on withdrawal. That has been treated as a final decision on the merits even though the ET had not considered the merits at all. There has been a string of apparently contradictory cases dealing with whether, if a claimant withdraws a claim before the ET, he is entitled to bring subsequent proceedings in the civil courts or not. Barber v. Staffordshire CC [1996]2 All ER 748 and Lennon v. Birmingham City Council [2001] IRLR 826 suggested that if an ET claim was dismissed on withdrawal, a claimant could not bring subsequent proceedings, since the dismissal order was treated as a judicial act which created an estoppel. Sajid v. Sussex Muslim Society [2002] IRLR 113, Ako v. Rothschild Asset Management [2002]2 All ER 693 and Enfield v. Sivanandan [2005] EWCA Civ 10 suggested that this was not an inflexible rule (rather it was necessary to look at the circumstances of and purpose for which the claim was withdrawn/dismissed on withdrawal). 50. Amendment to r.25 of the ET Rules (in force since 6/4/09) has supposedly sorted this out (although the drafting is somewhat ambiguous). The position is that if a claim is withdrawn with the purpose of proceeding elsewhere, a claimant will be entitled to proceed elsewhere unless the claim is dismissed on the respondent s application (and claimants ought to be careful not to agree to this). 51. In British Association for Shooting and Conservation v. Cokayne [2008] ICR 185 it was held that the Ako approach is no longer open to claimants given the introduction of r.25 of the ET rules. It was also noted that that has potential to trap claimants (particularly unrepresented ones), and Tribunals are encouraged not to allow dismissal on withdrawal if there is PI/ employment crossover. Matthew White 10/1/12 19

20 material on file which would suggest that dismissal would be unjust. Furthermore, if a claim has been dismissed in unjust circumstances, it might be open to a claimant to apply for review of the dismissal. 52. The basic points are these:- (1) If you represent a defendant/respondent, you want the claim dismissed on withdrawal (and see Verdin v. Harrods [2006] IRLR 339 and Khan v. Heywood & Middleton PCT [2006] IRLR 793 for use in argument in any second claim if necessary; old rule cases, but sound principles). (2) If you represent a claimant and there is a second claim to come, if the first claim is withdrawn you must not let it be dismissed on withdrawal. (3) If you are representing C in a potential second claim where the first claim was dismissed on withdrawal, do not abandon hope, but look to review the dismissal. 53. If there is a mind-change during litigation, claimants should make sure that everyone knows that they are withdrawing to pursue an alternative claim. 54. An example of issues which can arise in multi-jurisdiction cases is Johnson v. AWE PLC unreported, EAT 27/6/08 (Lawtel AC ). The claimant settled PI claims against his employer, settling causes of action herein. His claim included the assertion that he had retired 2 years earlier than he would have done but for the injury. He subsequently brought a claim for disability discrimination alleging a failure to make reasonable adjustments which would have allowed him to stay at work for those 2 years. The DDA claim was struck out on the basis of issue estoppel. It was agreed that an appeal ought to be allowed because the causes of action herein were claims for negligence/ breach of statutory duty:- that is what had been settled, not any DDA claim. The EAT made clear that when considering the DDA claim, the ET ought to consider whether or PI/ employment crossover. Matthew White 10/1/12 20

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