Case of the week: Bon Groundwork Ltd v Foster

Bon Groundwork Ltd v Foster


Mr Foster was employed by Bon Groundwork from 1997. He was laid off without pay on 15 April 2009. On 27 April, Mr Foster wrote to his line manager stating that the company was not entitled to lay him off and he should have been paid from 15 April.

On 29 April, the company decided to dismiss Mr Foster. By letter dated 21 May, the company confirmed that Mr Foster would be dismissed by reason of retirement with effect from 31 July. On 10 June 2009, Mr Foster brought a tribunal claim seeking a redundancy payment.


The tribunal found that there was no entitlement to a redundancy payment by reason of lay-off because Mr Foster had failed to comply with the notice requirements in the lay-off provisions in the Employment Rights Act 1996. Although Mr Foster had not been dismissed when he submitted his claim, it also found that he was dismissed not by reason of redundancy, but by reason of retirement. His claim for a redundancy payment based on a dismissal by reason of redundancy also failed.

Mr Foster brought fresh proceedings alleging automatic unfair dismissal, either for whistleblowing or on the grounds that he had asserted a statutory right, ordinary unfair dismissal, failure to follow the (then in force) statutory retirement process, and for a guarantee payment. The company sought to have the claims struck out.

The tribunal held that, as the previous tribunal had concluded that the reason for dismissal was retirement, Mr Foster was estopped from asserting a different reason. The automatically unfair dismissal claims had already been determined. The tribunal also held that the other dismissal claims were an abuse of process as they had not been raised in the first proceedings. The guarantee payment claim was permitted to proceed.

Mr Foster appealed. The Employment Appeal Tribunal (EAT) upheld his appeal. Bon Groundwork appealed to the Court of Appeal. The Court of Appeal upheld the EAT decision and found in favour of Mr Foster.

The Court of Appeal held that there was no proper basis on which the first tribunal could infer that a claim for dismissal redundancy (as opposed to lay-off redundancy) was before it. It was not empowered to make a judgment on the reason for dismissal. It was not an abuse of process to pursue the other dismissal claims in later proceedings, as no claim arising from dismissal was properly before the tribunal. There could be real injustice if Mr Foster was not permitted to pursue his claims.


When an issue has been determined between the parties by being litigated before a judicial body, it cannot be reopened. However, the parties are only bound by an issue that it was necessary for the court to determine in the earlier claim. It is not necessary if the earlier court did not have jurisdiction to determine it.

The principle in Henderson v Henderson states that it may be an abuse of process to bring forward in subsequent proceedings matters that should and could have been raised in the first proceedings, if to do so involves unjust harassment of a party.

As the Court of Appeal noted, tribunals are understandably concerned to ensure that all claims are, if possible, brought together. However, analysis is needed when determining what claims need to be resolved at a hearing. Care is required when a second claim is brought to determine whether or not those claims brought at the second hearing were in fact resolved at the first and, if not, whether they should have been brought in the first claim.

Clare Gregory, employment partner, DLA Piper

XpertHR resources on tribunal procedure and redundancy payments

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