British Association for Shooting and Conservation v Cokayne

EAT: Judge Richardson: 19 October 2007

The claimant employee resigned, giving three months' notice, and five weeks later, while the employers' grievance procedure was still proceeding, made a complaint of constructive unfair dismissal. The employers' response pointed out that the claimant had unreasonably issued proceedings before the conclusion of the grievance procedure and that they would accordingly be seeking a reduction in any compensation that might be awarded. The claimant withdrew the complaint, expressing an intention to resubmit it once the grievance procedure was completed, following which, on application by the employers, the complaint was dismissed in accordance with rule 25 of the Employment Tribunals Rules of Procedure 2004. The claimant subsequently made a second complaint of unfair constructive dismissal, giving the same resignation date, criticising the grievance procedure and giving more detailed reasons for his resignation. At a pre-hearing review a tribunal chairman rejected the employers' contention that, the first claim having been dismissed, the doctrine of cause of action estoppel applied so that the tribunal lacked jurisdiction to hear the second claim, holding that the two sets of proceedings were not the same.

The employers appealed.

Judge Richardson held:
Although the claimant's second claim included a complaint about the grievance procedure which could not have been included in his first claim, the cause of action, unfair constructive dismissal, was fundamentally the same, and the chairman was wrong to hold that there could not be a cause of action estoppel because the claims were not identical. Rule 25 of the Employment Tribunals Rules of Procedure 2004 provided a procedure which distinguished between withdrawal and dismissal of proceedings, with withdrawal being the equivalent of discontinuance and dismissal a formal judgment terminating the proceedings, and once proceedings were dismissed under rule 25(4) a claimant could not avoid the consequences merely by asserting that he had always intended to bring a second claim and that it would not be an abuse of process to do so, but where, as in the present case, a claimant, ignorant of the rule, had failed to oppose an application for dismissal, he could apply for a review of the dismissal judgment under rule 34(1)(b), when consideration could be given to whether it would be an abuse of process to commence fresh proceedings.

The appeal was allowed.

Appearances: Nicholas Siddall (Hill Dickinson, Manchester) for the employers; David Tinkler (Hillyer McKeown, Chester) for the claimant.