Abuse of Process

The concept of abuse of process within employment law is a fairly unusual occurrence. The doctrine forms part of the res judicata principle, which prevents someone from re-litigating something which has already been litigated, or that could have been previously litigated as part of earlier proceedings. This is also known as “the rule in Henderson v Henderson”.

The recent employment case of Agbenowossi-Koffi v Donvand dealt with the issue however, in relation to discrimination proceedings.

By way of reminder, to bring a discrimination claim before an Employment Tribunal, a Claimant must do so within three months of the discriminatory incident taking place, or within three months of the end of a period in which the incidents form part of a chain of discriminatory acts.

Having submitted the claim initially, the Claimant in this case wished to add two further matters to the proceedings, which were not dealt with in the original ET1 claim form. The Claimant was invited to bring a new claim and did so, citing the same initial incident (that formed part of the original ET1), as well as the two additional incidents that were omitted from the original ET1.

It was found that the claims listed in the second ET1 claim form could not proceed. This was because the original ET1 had been dismissed (for being out of time), because the two additional matters should have been included within the original ET1 claim form but were not, and finally, because the rule in Henderson v Henderson meant that it would be an abuse of process for the Tribunal to allow the claim to proceed.

Ultimately, the Tribunal determined that the Claimant had only issued a second ET1 claim form referring to additional concerns and complaints, not because she genuinely believed that she had actually suffered discrimination on these two further occasions, but rather, in order to overcome the first ET1 claim form having been dismissed by virtue of the claim being brought out of time.

The fact that the employer could potentially face further unwarranted claims was in the Tribunal’s view, enough to hold that the proceedings detailed in the second ET1 would amount to an abuse of process.

Employers should be mindful of Claimants trying to raise subsequent claims or complaints in similar ways to those covered by this case. As always, legal advice should be sought to ensure that if a claim can be dealt with on a jurisdictional basis thereby saving costs and time, it is dealt with accordingly, with a view to avoiding a final hearing.

Taking advice will also ensure that if a subsequent claim, for whatever reason, is accepted by a Tribunal, tactical steps such as costs warnings and deposit orders are considered in order to best protect the employer’s position.