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Navigating the Minefield: Claims in the Employment Tribunal, County Court and Abuse of Process - Liam Ryan, Ely Place Chambers

19/02/17. When dealing with Stress at Work cases one of the first issues that needs to be considered is in which forum (County or High Court as opposed to the Employment Tribunal) should a Claimant bring their claim? In cases where a Claimant has suffered psychiatric injury, issues that can arise with such an injury, such as an inability to engage with legal advisors, can naturally direct a Claimant to pursuing a claim for personal injury in the County or High Court as opposed to seeking remedies in the Employment Tribunal due to limitation issues.

However, what happens when an Employment Tribunal claim comes to an end but the Claimant seeks to bring County or High Court proceedings? A Claimant who may well have proceeded initially as a litigant in person in the Employment Tribunal can find themselves being precluded from being able to bring the later action due to it being classed as an abuse of process. Whilst most Confidentiality Agreements entered into upon the settlement of Employment Tribunal claims include clauses that limit future actions, but exclude future personal injury claims, it should always be remembered that an award for injury to feelings can be construed as falling into the class of damages for personal injury (Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] I.C.R. 1170) creating a situation whereby the same claim is effectively brought for a second time, just by a different mechanism (Lennon v Birmingham City Council [2001] EWCA Civ 435). This can be especially hazardous considering part 44.15 (a) CPR which allows a Defendant to side-step the QOCS protection provided by part 44.14 CPR and recover its costs directly from a Claimant where a claim is struck out as being an abuse of process.

The recent decision of Manda v USB AG (Central London County Court), 16th June 2016 provides guidance as to the issues such a scenario creates, and the application of the principles and analysis of “res judicata” as set out by Lord Sumption in Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd [2013] UKSC 46, [2014] A.C. 160.

Manda v USB AG (Central London County Court), 16th June 2016

In this matter, Mr Manda started working for the Defendant in August 2006 as a Quantitative Risk Analyst. In late 2007 he joined a team led by a Mr Cesari. Mr Manda alleged that from then onwards he was the subject of inappropriate treatment by employees of the Defendant. He raised a grievance about this in July 2010 which was rejected in September 2010, and on the 1st October 2010 he went on sick leave. He remained absent for over 8 months and returned to work in June 2011 but 2 days later he was absent due to illness again. In December 2011, he raised a second grievance which was also rejected and by January 2013 he had exhausted the internal appeal procedure relating to it. Around this time there were discussions about his return to work but he resigned on the 10th April 2013 and almost immediately issued unfair dismissal and discrimination proceedings in the Employment Tribunal...

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