Law Report: 20 may 1998; Claimant estopped from pursuing race complaint

Law Report: 20 may 1998;London Borough of Brent v Divine-Bortey

London Borough of Brent v Divine-Bortey; Court of Appeal (Lord Justice Simon Brown, Lord Justice Swinton Thomas and Lord Justice Potter) 14 May 1998

THE WIDE form of issue estoppel, which precluded the bringing of fresh proceedings in respect of a matter which could and should have been litigated in earlier proceedings, applied in proceedings before an industrial tribunal.

The Court of Appeal allowed the appeal of the London Borough of Brent against a decision of the Employment Appeal Tribunal that the respondent might proceed with a claim of racial discrimination.

The respondent, who had been employed by the council as an administrative assistant, was dismissed on the ground of redundancy. He was interviewed for a replacement post, but was not selected. He complained of unfair dismissal. In the course of the hearing of that complaint by the industrial tribunal, it emerged that he had not been selected because he had "an African accent". The tribunal dismissed his complaint of unfair dismissal, finding that the selection process had been fairly and properly carried out.

The respondent then made a fresh complaint, of racial discrimination under the Race Relations Act 1976, claiming that at the first tribunal hearing, his employer had admitted that one of the reasons for his dismissal was that he had an African accent.

The industrial tribunal dismissed the second complaint on jurisdictional grounds, holding the matter to be res judicata. The respondent's appeal to the Employment Appeal Tribunal was allowed.

Simon Devonshire (Solicitor to London Borough of Brent) for the council; Robin Allen QC (Solicitor to UNISON) for the respondent.

Lord Justice Simon Brown said that the plea of res judicata encompassed three types of estoppel: cause of action estoppel, issue estoppel in the strict sense, and issue estoppel in the wider sense, which ordinarily precluded a person from bringing fresh proceedings in respect of a matter which could and should have been litigated in earlier proceedings.

The wider form of issue estoppel had its origins in Henderson v Henderson (1843) 3 Hare 100. There was no doubt that issue estoppel applied in industrial tribunal cases, but the present appeal raised the question of how an industrial tribunal should approach the wider form of issue estoppel, or the rule in Henderson v Henderson, and whether special circumstances existed for not applying the rule.

The Employment Appeal Tribunal had concluded that the second tribunal had not had regard to the special circumstances which could make it unjust to apply the Henderson v Henderson rule. It had found, as one of those special circumstances, that an industrial tribunal should be readier than an ordinary court of law not to apply the rule in Henderson v Henderson, given in particular that the parties before such a tribunal were encouraged not to be legally represented.

That approach posed considerable difficulties. In the first place, it must be recognised that the rule applied in full measure in ordinary courts irrespective of whether the person being estopped had or had not been represented in the earlier proceedings. Secondly, the Employment Appeal Tribunal's own jurisprudence clearly established that a point not taken by a party in the industrial tribunal could not be taken on appeal even though the failure to take it originally was due to the lack of skill or experience of the party's advocate, and even though the omission could have been rectified by the industrial tribunal taking the point itself.

The self-same considerations which underlay the Employment Appeal Tribunal's approach to fresh points on appeal applied with no less force to the question whether or not to operate the Henderson v Henderson rule. The Employment Appeal Tribunal had, therefore, erred in their approach.