If at first you don’t succeed…
First West Yorkshire Limited t/a Quickstep Travel v Marshall, EAT website,
18 October 2005
Facts While on sick leave, Marshall presented a tribunal claim alleging ‘harassment, bullying, victimisation and constructive dismissal’ and stating she would be submitting her resignation ‘at the expiry of her present sick note’.
A preliminary hearing was convened to address the fact that Marshall’s constructive dismissal claim had been lodged before her resignation – a claim which requires the employment relationship to have ended. Her claim was struck out as premature.
A week later, Marshall filed a new complaint, identifying the same grounds and raising a complaint of disability discrimination related to her prolonged sickness. The company argued that her claim had already been struck out and could not be reinstated, but also that she could not now raise a new claim inextricably linked to the earlier one.
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The tribunal allowed the new claims on the basis that it was not the same – the factual position had changed as, by the second claim, Marshall had resigned. The company appealed.
Appeal The law raised in this case states that, once decided, a case cannot be reheard, and also that all claims arising from the same facts (known at the time) must be raised together. This latter rule is also known as the doctrine of res judicata. The Employment Appeal Tribunal agreed with the tribunal in this case, however, and dismissed the appeal on the basis that, second time around, Marshall’s resignation rendered the subject matter of the first claim different to the second. In light of that, the arguments surrounding the new disability claim became irrelevant.
Comment The principle that there should be finality in litigation, and that a party should not be twice vexed in the same matter or unnecessarily subjected to successive actions, is fundamental to our judicial system.
However, the rule only operates where the same facts exist at the time when the original proceedings were determined and when it is sought to issue the fresh application. Here, the fact the tribunal had jurisdiction to hear Marshall’s claim once she had resigned (which it did not previously) meant this rule was not undermined, nor the company’s position prejudiced.
