Abuse Of Process: Court Holds That Employment Tribunal Was Capable Of Hearing Injury Claim

• Published date: 07 August 2020
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Unfair/ Wrongful Dismissal, Employment Litigation/ Tribunals, Personal Injury
• Law Firm: Clyde & Co
• Author: Clyde & Co LLP

The High Court recently held that a claimant should have brought a personal injury claim before an Employment Tribunal, when pursuing simultaneous claims for harassment and unfair dismissal.

Upholding the first instance decision, the High Court agreed that there was no special reason why the Claimant had not brought his personal injury claim before the Employment Tribunal, which had jurisdiction to hear it. This decision was reached with reference to the Henderson v Henderson and Johnson v Gore-Wood decisions.

Background

The Claimant was employed by the Defendant between 1998 and 2013, and had brought a claim in the Employment Tribunal in December 2013 alleging unfair dismissal and harassment. The Tribunal had jurisdiction to determine a claim for personal injury damages arising out the same underlying facts but the Claimant elected not to bring a personal injury claim at this time.

Whilst the harassment claim was struck out, the unfair dismissal claim continued. At this stage, the Claimant instructed his solicitors to pursue a personal injury claim. The Claimant brought a claim against the Defendant for PTSD, caused by breach of contract, breach of duty and/or harassment.

Proceedings were issued on 25 August 2015, and two days after the parties attended mediation in relation to the dismissal claims. The Defendant agreed to pay the Claimant compensation for termination of employment and for injury to feelings. The compromise agreement made clear that this settlement did not preclude the Claimant from pursuing his personal injury claim.

However, the Defendant averred that the personal injury claim was an abuse of process and issued a strike out application.

At the hearing, and considering Henderson v Henderson (1843) and Johnson v Gore-Wood & Co [2002], HHJ Gargan held the Claimant's claim should be struck out as an abuse of process, and the Claimant pay the Defendant's costs of the whole action as well as the strike out application.

Appeal

The Claimant appealed the decision of HHJ Gargan on the following grounds:

• The Court misinterpreted the Employment Tribunal decision;
• The Judge's approach to question of whether there was a 'special reason' not to strike out the Claimant's claim and
• The application of the 'broad, merits-based judgment' referred to by Lord Bingham in Johnson v Gore-Wood.

Interpretation of the decision of the Employment Tribunal

Mr Justice Lavender held that HHJ Gargan was right to find that harassment claims were struck out for abuse...