Mrs L Richards v Sandwell and West Birmingham Hospitals NHS Foundation Trust: 1308627/2023

EMPLOYMENT TRIBUNALS

Case No 1308627/2023

Between

Mrs Lisa RichardsClaimant

Sandwell and West Birmingham Hospitals NHS Foundation Trust RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Murdin

Date 27 July 2026

JUDGMENT

[1]The Respondent’s application dated 13th August 2024 is granted, and the claim is consequently struck out.

[2]The Claimant's application to amend her ET1, first made in December 2024 and subsequently particularised pursuant to earlier case management orders, is dismissed.

[3]Further Case Management Directions have been issued in an Order of today’s date. PHCM Order 1 of 27 September 2023

REASONS

[4]This matter came before the Tribunal for a Preliminary Hearing listed over two days on 16 and 17 April 2026. The hearing followed case management directions made by Employment Judge Gidney at a Preliminary Hearing conducted by telephone on 17 February 2026. Those directions identified a number of issues requiring determination before any final hearing could be listed. The principal issue was whether the present proceedings should be struck out pursuant to the Respondent's application dated 13 August 2024.

[5]The Claimant appeared in person, and the Respondent was represented by Mr Keith Webster of Counsel.

[6]The Tribunal had before it a Preliminary Hearing bundle extending to approximately 482 pages together with the parties' written submissions, witness statements prepared for the Preliminary Hearing, previous Employment Tribunal judgments, previous case management orders, correspondence between the parties and the Tribunal, and the Respondent's strike-out application.

[7]Oral submissions were received from both parties, and Judgment was reserved. The Applications

[8]A number of applications fell for determination. The first, and by far the most significant, was the Respondent's application dated 13 August 2024 seeking an order pursuant to Rule 38 of the Employment Tribunals Procedure Rules 2024 that the entirety of Claim No. 1308627/2023 be struck out.

[9]Secondly, the Tribunal was required to determine the Claimant's application to amend her ET1, first made on 19th December 2024 and subsequently particularised pursuant to earlier case management orders. PHCM Order 2 of 27 September 2023

[10]Thirdly, the Respondent maintained an application for costs dated 3rd March 2025 arising from the adjournment of the hearing originally listed in October 2024.

[11]Fourthly, consequential case management issues arose depending upon the Tribunal's determination of the strike-out application.

[12]The Tribunal determined that the Respondent's Rule 38 application should be considered first because its outcome was potentially dispositive of the The Respondent's Strike-Out Application

[13]The Respondent submits that the present proceedings amount to an abuse of the Tribunal's process. In summary, it contends that the claim either seeks to relitigate matters already determined in previous proceedings between the parties, or seeks to advance matters which properly ought to have formed part of those earlier proceedings.

[14]The Respondent relies upon four principal grounds, helpfully set out within the Respondent’s skeleton argument dated 13th April 2026.

[15]Firstly, it submits that substantial parts of the present claim are barred by the doctrines of cause of action estoppel and issue estoppel arising from the Reserved Judgment promulgated on 8 December 2023 following the determination of Claim No. 1300021/2021.

[16]Secondly, it contends that any matters not previously determined nevertheless arise from facts known to the Claimant during the earlier proceedings and therefore fall within the principle identified in Henderson v Henderson.

[17]Thirdly, the Respondent submits that many allegations are outside the Tribunal's jurisdiction because they are presented out of time. PHCM Order 3 of 27 September 2023

[18]Fourthly, it submits that the surviving allegations disclose no reasonable prospect of success and should therefore be struck out pursuant to Rule 38.

[19]Those submissions are developed at length within the Respondent's written application and supporting skeleton argument. The Respondent identifies what it says are substantial overlaps between the present proceedings (Claim 3) and Claims 1 and 2, and contends that repeated litigation of those matters would offend the principles of finality and amount to an abuse of process. The Claimant's Position

[20]The Claimant opposes the application.

[21]She submits that the present proceedings concern matters which have not previously been adjudicated upon and include acts occurring after the periods considered within the earlier litigation.

[22]She contends that she has sought to identify continuing detriments and allegations of victimisation which remained ongoing after the conclusion of Claim 1.

[23]She further submits that she should be permitted to amend her pleadings to clarify those allegations and that any deficiencies in pleading can be addressed by further particulars rather than striking out the proceedings.

[24]She denies that the present claim constitutes an abuse of process.

The Issues

[25]The issues for determination are those identified in Employment Judge Gidney's Case Management Order of 17 February 2026.

[26]The principal issue is whether the Claimant's claim should be struck out on the ground that it either was, or should have been, included in the Claimant's first two PHCM Order 4 of 27 September 2023 claim forms, as set out in the Respondent's strike-out application dated 13 August 2024. The Procedural Context

[27]The present proceedings cannot properly be understood in isolation. They form part of a sequence of Employment Tribunal claims commenced by the Claimant arising out of her employment with the Respondent over a number of years.

[28]Claim No. 1300021/2021 proceeded to a lengthy final hearing in September 2023. By a Reserved Judgment promulgated on 8 December 2023, the Tribunal dismissed the entirety of the Claimant's claims.

[29]Claim No. 1301470/2023 was subsequently struck out in its entirety by Judgment dated 11 February 2025.

[30]The present proceedings (Claim No. 1308627/2023) were issued on 11th December 2023 and have been the subject of extensive case management, including various applications.

[31]It is against that procedural background that the Tribunal now turns to set out the history of the litigation in greater detail before making findings of fact relevant to the Respondent's Rule 38 application. Procedural History

[32]The Tribunal has considered the entirety of the documentary evidence placed before it for the purposes of this Preliminary Hearing. That material includes the pleadings in the present proceedings, the pleadings and judgments in the earlier proceedings, the various case management orders made by Employment Judges Edmonds and Gidney, the Respondent's application dated 13 August 2024, the Claimant's amendment applications, and the extensive correspondence exhibited within the hearing bundle. PHCM Order 5 of 27 September 2023

[33]The chronology of the litigation is of particular importance because the Respondent's application is founded upon the contention that the present proceedings cannot properly be understood independently of the earlier litigation between these parties. The Tribunal therefore sets out that history in some detail. Claim No. 1300021/2021 (Claim 1)

[34]The Claimant's first proceedings arose from events occurring during the course of her employment with the Respondent and included complaints of discrimination, harassment and victimisation under the Equality Act 2010.

[35]Those proceedings were actively case managed over a considerable period and ultimately proceeded to a substantial Final Hearing before a differently constituted Employment Tribunal.

[36]That hearing occupied a number of sitting days and involved extensive documentary evidence together with oral evidence from the Claimant and numerous witnesses called on behalf of the Respondent.

[37]Following that hearing, the Tribunal reserved its decision, and a Reserved Judgment and detailed Reasons were promulgated on 8 December 2023.

[38]The Tribunal dismissed all of the Claimant's complaints. In doing so, the Tribunal made extensive findings of primary fact concerning the events relied upon by the Claimant, the conduct of individual managers and colleagues, the Respondent's investigations and grievance procedures, and the reasons for the decisions challenged by the Claimant.

[39]Those findings were neither provisional nor interlocutory, constituting final judicial determinations following a contested hearing on the evidence.

[40]That judgment has not been set aside, and whilst applications were subsequently made challenging that judgment, the decision remains in force. PHCM Order 6 of 27 September 2023

[41]The significance of that judgment extends beyond the dismissal of the substantive claims. It established a body of findings of fact which, subject to the applicable legal principles concerning estoppel and abuse of process, are binding upon the parties. The Tribunal returns to that issue when considering the Respondent's reliance upon res judicata, issue estoppel and the principle in Henderson v Henderson. Claim No. 1301470/2023 (Claim 2)

[42]Whilst the first proceedings were drawing to a conclusion, the Claimant commenced a second claim against the Respondent. That claim concerned further allegations arising from the continuing relationship between the parties and events occurring after those which formed the principal subject matter of Claim 1.

[43]The Respondent resisted that claim, and Judgment was issued on 11th February 2025 by Employment Judge Edmonds.

[44]Employment Judge Edmonds concluded that allegations relating to Claim No. 1 had already been determined and could not simply be reintroduced into later proceedings. The Tribunal also refused the Claimant's application to consolidate Claims 2 and 3, concluding that consolidation would not assist the efficient disposal of the proceedings because Claim 3 remained insufficiently particularised and because preliminary jurisdictional issues required determination before any consolidation could properly be considered.

[45]Those observations assume particular significance in the present application because they demonstrate that concerns regarding duplication of proceedings and the proper identification of the issues had already been identified by the Tribunal well before the Respondent's strike-out application came to be determined. PHCM Order 7 of 27 September 2023 The Present Proceedings

[46]The present claim was issued on 11th December 2023. The Respondent served a Response denying liability and subsequently issued a formal application dated 13th August 2024 seeking to strike out the proceedings pursuant to Rule 38.

[47]The Respondent contended that the claim disclosed no reasonable prospects of success, amounted to an abuse of process, and sought to relitigate matters that had already been determined or which should properly have been advanced in the earlier proceedings. It was supported by detailed written submissions identifying what the Respondent contended were substantial overlaps between the allegations advanced in the three separate claims.

[48]The Respondent submitted that the present proceedings offended the principles of finality in litigation and that permitting the claim to continue would require the Tribunal and the parties to revisit factual issues that had already been determined following extensive hearings.

[49]By Order dated 17th February 2026, Employment Judge Gidney listed the Respondent's strike-out application for hearing over two days. It is that application which now falls for determination.

[50]Against that procedural background, the Tribunal turns to make findings of fact concerning the relationship between the three sets of proceedings before considering the applicable legal principles and their application to the facts of this case. Findings of Fact Relevant to the Respondent's Application

[51]The Tribunal has considered the pleadings in the present proceedings together with the documentary material contained within the extensive Preliminary Hearing bundle. In addition, the Tribunal has considered the earlier judgments, the case management decisions made during the previous proceedings and the parties' written and oral submissions. PHCM Order 8 of 27 September 2023

[52]The Tribunal reminds itself that, at this stage of the proceedings, it is not required to determine the substantive merits of every allegation contained within the ET1. The issue before the Tribunal is whether the proceedings should be permitted to continue having regard to the Respondent's application under Rule 38.

[53]Nevertheless, it is necessary to make findings concerning the procedural history and the relationship between the present proceedings and the earlier litigation. Having considered all of the evidence before it, the Tribunal makes the following findings. The Earlier Litigation

[54]The first proceedings between these parties were comprehensive litigation arising from the Claimant's employment with the Respondent. Those proceedings extended over a considerable period, and involved detailed pleadings, disclosure of documentation, witness statements, extensive oral evidence and legal submissions.

[55]The Tribunal determined the claims following a contested Final Hearing. The Reserved Judgment was lengthy and contained detailed findings of primary fact. Those findings addressed not merely the legal conclusions but the underlying factual disputes between the parties.

[56]The Tribunal reached findings concerning the conduct of managers, the investigation of complaints, the handling of grievances, communications between the parties and the Respondent's reasons for the decisions challenged by the Claimant. Those findings formed the essential basis upon which the claims were dismissed.

[57]That judgment, which begins at page 60 of the Preliminary Hearing bundle, clearly constituted a final judicial determination of the matters then before the Tribunal. It has not been overturned. PHCM Order 9 of 27 September 2023

[58]The findings of fact are extremely lengthy and detailed. They stretch from paragraphs 61 – 244 and contain factual matters dating from the start of the Claimant’s employment in 2013 to the conclusion of her appeal on 31st May 2022. Claims of direct sex discrimination, harassment related to sex and victimisation were all considered and dismissed. The Present Proceedings

[59]The Tribunal has compared the present ET1 with the earlier proceedings. It is immediately apparent that there exists a substantial factual overlap between the present proceedings and the earlier litigation.

[60]Many allegations concern the same period of employment. Many involve the same managers and decision-makers. A number concern the same grievance procedures and complaints. In particular, the following matters of fact were determined within Claim 1:(a) Direct Sex Discrimination Page 60-61 of the bundle, and paragraphs 271-276 of the judgment. Allegations of less favourable treatment because of sex, including specific incidents involving ‘Y’ and colleagues. The judgment found that the alleged conduct was either not proven or not related to sex, and no objective detriment was established. The allegations within Claim 1 were materially the same allegations as are advanced within this Claim.

(b) Harassment Related to Sex Page 61–66 of the bundle and paragraphs 277–302 of the judgment. Allegations of unwanted conduct related to sex, including claims of rape, including comments, and behaviour by colleagues and managers. These allegations included allegations of rape by “Y’ (Paragraphs 282–283), PHCM Order 10 of 27 September 2023 allegations of comments and behaviour by colleagues, including spreading rumours and discussing the Claimant’s personal matters (Paragraphs 286–290) and allegations of security breaches and mishandling of private information (Paragraphs 296–299). The judgment found that the alleged conduct was either not proven, not related to sex, or did not have the proscribed purpose or effect under the Equality Act 2010. The allegations within Claim 1 were materially the same allegations as are advanced within this Claim.

(c) Victimisation (i) Page 66–69 of the bundle and paragraphs 303–324 of the judgment. Allegations that the Claimant was subjected to detriment because she did a Protected Act under the Equality Act 2010. The allegations included allegations of detriment due to protected acts, such as reporting sexual discrimination and harassment (Paragraphs 303–309), allegations of unfair treatment during grievance processes and sickness absence reviews (Paragraphs 313–316), and allegations of being forced into temporary redeployment and other employment-related decisions (Paragraphs 317–319). The judgment found that the Claimant failed to establish that the alleged detriments were caused by protected acts or that they constituted detriments; again, the allegations within Claim 1 were materially the same allegations as are advanced within this Claim. (ii) Page 60–61 of the bundle and paragraphs 271–276: Incidents involving ‘Y’s behaviour, comments, and interactions with the Claimant. The judgment found no evidence of unwanted conduct or less favourable treatment because of sex, and the Tribunal again concludes that allegations within Claim 1 were materially the same allegations as are advanced within this Claim. PHCM Order 11 of 27 September 2023

[61]Others allegations appear to arise from matters that were already known to the Claimant whilst the earlier proceedings remained ongoing. Whether those allegations are barred by res judicata, issue estoppel or the rule in Henderson v Henderson is a question of law to which the Tribunal shall return.

The Law

[62]Before considering the Respondent's application on its merits, the Tribunal sets out the legal principles applicable to the exercise of its jurisdiction under Rule 38 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 ("the Rules").

[63]The Tribunal has had regard to the submissions of both parties, the authorities relied upon by the Respondent and those authorities which the Tribunal considers necessary for the determination of the application.

[64]Whilst the parties' submissions differed markedly as to the proper application of those principles, there was no substantial dispute as to the legal framework itself. The principal questions concern the application of those principles to the procedural history of the present litigation. Rule 38

[65]Rule 38 confers upon the Tribunal a discretionary power to strike out all or part of a claim at any stage of proceedings upon one or more of the statutory grounds specified within the Rule.

[66]The Respondent relies principally upon Rule 38(1)(a), namely that the claim has no reasonable prospect of success, and Rule 38(1)(b), namely that the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious. They allege that these proceedings amount to an abuse of process. PHCM Order 12 of 27 September 2023

[67]The existence of a statutory ground does not compel the making of a strike-out order, and the jurisdiction remains discretionary. The Tribunal must therefore determine first whether one or more of the statutory grounds is established and, secondly, whether the exercise of its discretion requires that the proceedings, or any part of them, should be struck out. In exercising that discretion the Tribunal must have regard to the overriding objective contained within Rule 3. The Overriding Objective

[68]Rule 3 requires the Tribunal to deal with cases fairly and justly. That obligation includes ensuring that the parties are on an equal footing, avoiding unnecessary delay and expense, dealing with cases proportionately, saving expense and making appropriate use of the Tribunal's resources.

[69]However, the overriding objective is not concerned exclusively with the interests of a claimant. It requires fairness to both parties. It also reflects the public interest that finite judicial resources should not be expended upon proceedings which cannot properly succeed or which amount to an abuse of process.

[70]Accordingly, the Tribunal must balance the Claimant's entitlement to pursue properly arguable claims against the Respondent's entitlement to finality in litigation and to protection from repeated proceedings concerning substantially the same matters. Strike Out in Discrimination Claims

[71]The Tribunal reminds itself that appellate authority has consistently emphasised that strike out should be approached with particular caution in discrimination claims. Such claims frequently depend upon inferences drawn from primary facts. Questions of motivation, conscious or unconscious discrimination, and causation commonly require careful evaluation following the hearing of oral evidence. PHCM Order 13 of 27 September 2023

[72]It follows that the Tribunal should be slow to conclude, without hearing evidence, that a discrimination claim is incapable of succeeding. That principle, however, does not create immunity from Rule 38. Parliament has made no distinction within Rule 38 between discrimination claims and other forms of Employment Tribunal litigation.

[73]The Tribunal therefore retains jurisdiction to strike out discrimination claims where the statutory criteria are satisfied. The need for caution concerns the manner in which the jurisdiction is exercised rather than its existence.

[74]Consequently, where proceedings amount to an abuse of process, or where the legal deficiencies are incapable of being cured by evidence at a final hearing, Rule 38 remains available. Abuse of Process

[75]The Respondent's principal submission is not merely that the claim is weak. Rather, it contends that the present proceedings constitute an abuse of process. Abuse of process is a broad doctrine founded upon the inherent jurisdiction of courts and tribunals to protect the integrity of their own proceedings.

[76]The categories of abuse are not closed. Proceedings may be abusive because they seek to relitigate matters already determined. They may also be abusive where they seek to divide a single dispute into successive proceedings when those matters properly ought to have been determined together.

[77]The doctrine reflects the wider public interest that litigation should achieve finality. It protects successful parties from repeated litigation, and also protects the administration of justice itself. If parties were free repeatedly to commence fresh proceedings arising from substantially identical factual circumstances, there would be little value in final judgments. Judicial resources would be consumed by repetitive litigation, and public confidence in the administration of justice would inevitably be diminished. PHCM Order 14 of 27 September 2023

[78]It is against that background that the doctrines of res judicata, cause of action estoppel, issue estoppel and the rule in Henderson v Henderson have developed.

[79]The Tribunal therefore approaches the Respondent's application bearing in mind the importance of these principles are of central importance to the proper administration of justice. It is now necessary to consider the individual doctrines relied upon by the Respondent before determining whether they apply to the facts of the present case. Res Judicata

[80]The expression res judicata describes the general principle that a final judgment of a court or tribunal of competent jurisdiction is conclusive between the parties. It is a doctrine founded upon public policy rather than mere procedural convenience. The doctrine recognises that litigation must, at some stage, come to an end.

[81]It is in the interests of both litigants and the wider administration of justice that disputes, once finally determined, should not ordinarily be reopened. The doctrine embraces a number of related principles including cause of action estoppel, issue estoppel and the wider jurisdiction to prevent abuse of process recognised in Henderson v Henderson.

[82]Although analytically distinct, those principles should not be applied mechanistically. As the higher appellate courts have recognised, they represent different manifestations of the same underlying public policy. The Tribunal therefore approaches them as complementary doctrines rather than mutually exclusive rules. Cause of Action Estoppel

[83]Cause of action estoppel arises where a cause of action has already been finally determined between the same parties. Once judgment has been entered upon PHCM Order 15 of 27 September 2023 that cause of action, it is extinguished, and neither party may thereafter seek to litigate the same cause of action again.

[84]The doctrine is strict in its operation. It is not displaced merely because additional evidence subsequently becomes available, nor is it avoided by advancing different legal submissions in support of substantially the same claim. The rationale is straightforward: parties are expected to advance the whole of their case when the cause of action first comes before the Tribunal.

[85]They are not entitled to reserve aspects of that case for later litigation. Within the Employment Tribunal jurisdiction, the doctrine applies no less than in the ordinary civil courts. Thus, where a complaint of discrimination or victimisation has been finally determined, the same complaint cannot ordinarily be re-presented in subsequent proceedings between the same parties. Issue Estoppel

[86]Issue estoppel operates more narrowly. Rather than preventing the relitigation of an entire cause of action, it prevents the reopening of specific issues of fact or law that were essential to an earlier judgment. The doctrine applies where the identical issue has already been determined by a court or tribunal of competent jurisdiction in proceedings between the same parties.

[87]It is immaterial that the subsequent proceedings rely upon a different statutory cause of action if the factual issue has already been conclusively determined. Thus, where an earlier Tribunal has determined, following evidence, what occurred on a particular occasion or why a particular managerial decision was taken, those findings cannot ordinarily be revisited by a later Tribunal between the same parties.

[88]The rule exists not only to protect the successful party but also to avoid the possibility of inconsistent judicial findings. Public confidence in the administration of justice would be seriously undermined if different tribunals could reach conflicting conclusions regarding the same factual dispute between the same PHCM Order 16 of 27 September 2023 parties. Accordingly, a later Tribunal must give appropriate effect to findings which have already become final unless one of the recognised exceptions applies. Henderson v Henderson

[89]The Respondent also relies upon the principle derived from Henderson v Henderson (1843) 3 Hare 100, 67 ER 313. The classic formulation appears in the judgment of Sir James Wigram V-C, who observed that parties are required to bring forward their whole case when litigation is first before the court.

[90]The principle extends beyond matters actually decided. It encompasses matters which, with reasonable diligence, could and should have been raised in the earlier proceedings. The modern authorities emphasise that the doctrine is not simply an extension of estoppel. Rather, it forms part of the broader jurisdiction of the court or tribunal to prevent abuse of its own process.

[91]The leading modern exposition appears in Johnson v Gore Wood & Co

[2002] 2 AC1

. In that case, Lord Bingham explained that the essential question is whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise matters which could and should have been raised before. The enquiry is therefore evaluative rather than purely technical, requiring the Tribunal to stand back from the litigation as a whole.

[92]Relevant considerations include:(a) the extent of factual overlap between the proceedings;

(b) whether the claimant knew, or could reasonably have known, of the matters now relied upon;

(d) whether allowing the later proceedings would undermine the earlier judgment;

(e) the prejudice to each party; and PHCM Order 17 of 27 September 2023

(f) the public interest in the finality of litigation.

[93]No single consideration is determinative, and the Tribunal must consider the circumstances in the round.

Conclusion

[94]Having identified the applicable legal principles, the Tribunal turns to consider whether they apply to the present proceedings. In undertaking that exercise, the Tribunal has compared the pleadings in the present claim with the pleadings, judgments and procedural orders contained within the hearing bundle. The Tribunal has also considered the chronology of the litigation and the circumstances in which each claim came to be presented.

[95]It is convenient to consider first the relationship between the present proceedings and Claim No. 1300021/2021 (Claim 1). The Tribunal emphasises that its task is not to determine whether the earlier Tribunal reached the correct conclusions. Those findings are final unless set aside on appeal or review. This Tribunal has no appellate jurisdiction, nor is it concerned with whether the Claimant continues to disagree with those findings.

[96]The Tribunal having undertaken a comparative examination of the present ET1 and the earlier proceedings, there is clearly a very substantial overlap. A significant number of allegations arise from the same employment relationship. They concern the same managers, the same internal complaints, and the same alleged course of conduct.

[97]The Tribunal recognises that the Claimant has sought to describe some allegations using different language, and certain allegations have also been supported by additional factual narrative. However, a change in drafting does not necessarily create a new cause of action. The Tribunal must examine the substance rather than the form, and having done so, the Tribunal is satisfied that many of the matters now relied upon are substantially identical to matters already litigated. PHCM Order 18 of 27 September 2023

[98]Others depend upon findings which are inconsistent with the conclusions already reached by the earlier Tribunal. The present Tribunal cannot simply disregard those earlier findings, as to do so would expose the parties to inconsistent judicial determinations concerning identical events. That is precisely the situation which issue estoppel exists to prevent. Findings Already Determined

[99]The earlier Tribunal reached conclusions regarding the conduct of the Respondent's managers. It reached conclusions regarding the handling of the Claimant's complaints, and determined factual disputes concerning the Respondent's treatment of the Claimant during the relevant period.

[100]Those findings were necessary to the dismissal of the earlier claims, and they therefore constitute findings capable of giving rise to issue estoppel. The Claimant cannot invite this Tribunal to revisit those same factual disputes merely by presenting fresh proceedings. Nor can this Tribunal properly conduct what would, in substance, amount to an appeal from the earlier judgment.

[101]The Tribunal therefore concludes that, insofar as the present proceedings require the Tribunal to determine factual issues already decided in Claim No. 1300021/2021 (Claim 1), those issues are barred by issue estoppel. Matters Which Could and Should Have Been Raised

[102]The Tribunal has next considered whether allegations not expressly determined in Claim 1 nevertheless fall within the principle in Henderson v Henderson. The relevant question is whether those matters were known, or could with reasonable diligence have been known, to the Claimant during the earlier proceedings.

[103]The Tribunal has considered carefully the chronology disclosed by the bundle. It is apparent that many of the factual matters now relied upon had already occurred whilst Claim No. 1300021/2021 remained before the Tribunal. The Claimant was PHCM Order 19 of 27 September 2023 aware of those matters, and several had already been the subject of correspondence and internal complaints. No satisfactory explanation has been advanced as to why they could not have been incorporated into the earlier proceedings by amendment.

[104]The Tribunal also bears in mind that amendments were sought during the earlier litigation, and I note the observations subsequently made by Employment Judge Edmonds concerning the need for any genuinely new allegations to be clearly distinguished from matters already forming part of Claim 1.

[105]Those directions reflected precisely the concern now arising before this Tribunal. The Tribunal therefore concludes that many allegations now advanced are matters which properly belonged within the earlier proceedings. Permitting them to proceed would undermine the principle that parties should bring forward the whole of their case.

[106]It would expose the Respondent to successive litigation arising from substantially the same factual matrix, and would also create a real risk of inconsistent judicial findings.

[107]In the Tribunal's judgment, that would amount to an abuse of process within the principle explained in Henderson v Henderson and subsequently developed in Johnson v Gore Wood.

[108]Furthermore, the Tribunal derives further assistance from the earlier case management decisions. Employment Judge Edmonds expressly recognised that matters determined within Claim 1 could not simply be reintroduced through Claims 2 or 3 and directed the Claimant to identify any genuinely new allegations with precision. Those observations did not themselves determine the Respondent's strike-out application. Nevertheless, they demonstrate that concerns regarding duplication were identified judicially long before the present hearing. PHCM Order 20 of 27 September 2023

[109]Despite those directions, the present pleadings continue to rely upon a substantial body of factual allegations that overlap with the earlier proceedings. The Tribunal has taken that history into account when evaluating whether continuation of the proceedings would amount to an abuse of process.

[110]Standing back and considering the litigation as a whole, the Tribunal is satisfied that the overlap is not incidental or peripheral. It goes to the heart of the claim. The consequence is that the doctrines of issue estoppel and Henderson v Henderson are engaged in respect the present proceedings.

[111]The Tribunal therefore turns next to consider whether any part of the present claim survives those doctrines and, if so, whether those remaining allegations disclose a reasonable prospect of success for the purposes of Rule 38. Whether Any Part of the Claim Survives the Earlier Proceedings

[112]The Tribunal has approached the Respondent's application on the basis that it must consider each category of allegation individually before determining whether the claim as a whole should be struck out. The Tribunal accepts that the mere existence of overlap between successive proceedings does not inevitably require the dismissal of the later claim. A claimant is not precluded from pursuing genuinely new complaints merely because they arise within the same employment relationship.

[113]Likewise, acts occurring after the conclusion of earlier proceedings may found fresh causes of action, provided they are not simply repetitions of allegations previously determined. The Tribunal has therefore considered whether the present claim contains allegations which are both temporally and substantively distinct from the matters adjudicated upon in Claim No. 1300021/2021 (Claim 1).

[114]The Claimant submits that it does. She contends that the present proceedings concern continuing victimisation and detriments extending beyond the period considered by the earlier Tribunal. She further relies upon events said to have occurred after the promulgation of the Reserved Judgment. PHCM Order 21 of 27 September 2023

[115]The Tribunal has considered those submissions with care. The Tribunal accepts, as a matter of principle, that subsequent acts are not barred merely because they arise from the same employment relationship. However, the existence of later events does not prevent the application of Henderson v Henderson where the later claim substantially depends upon matters which have already been determined or which could and should have been advanced earlier.

[116]Nor does it prevent the operation of issue estoppel where the later complaint requires the Tribunal to revisit factual findings already made. The Tribunal must therefore distinguish between genuinely fresh allegations and allegations which merely seek to reopen previous findings. The Alleged New Matters

[117]The Tribunal has carefully examined the allegations said to post-date Claim 1. Some relate to continuing communications between the parties, whereas others relate to the Respondent's conduct following the conclusion of the earlier

[118]To the extent that those matters depend upon factual events occurring after the Reserved Judgment, they could not literally have been determined by the earlier Tribunal. Nevertheless, the Tribunal is required to consider their substance. Having done so, the Tribunal finds that many of those allegations derive directly from complaints already advanced and determined in Claim 1.

[119]They depend upon the proposition that the earlier conduct of the Respondent was unlawful, and that proposition was rejected by the earlier Tribunal after a full hearing. The present Tribunal cannot proceed upon the opposite factual premise without contradicting the earlier judgment.

[120]In substance, those allegations invite this Tribunal to revisit findings which have already become final. That is precisely what the doctrine of issue estoppel prohibits. Thus, to permit those allegations to proceed would expose the parties PHCM Order 22 of 27 September 2023 to inconsistent judicial findings arising from substantially identical factual disputes. The Tribunal concludes that they are therefore barred. The Amendment Application

[121]The Tribunal has also considered whether the Claimant's application to amend alters that conclusion. The proposed amendments seek to expand the factual narrative and introduce additional particulars. The Tribunal accepts that some of those particulars relate to matters occurring after the commencement of these

[122]However, an amendment cannot overcome a substantive legal bar. If the underlying allegations are precluded by cause of action estoppel, issue estoppel and/or the rule in Henderson v Henderson, the addition of further factual detail cannot revive them. Nor can careful redrafting transform an allegation previously determined into a genuinely new cause of action.

[123]The Tribunal therefore approaches the amendment application by considering the substance rather than the language employed. Having undertaken that exercise, the Tribunal concludes that the proposed amendments do not materially alter the character of the proceedings. They remain founded upon substantially the same factual matrix that has already been the subject of extensive litigation between these parties.

[124]In those circumstances, the amendment application does not remove the abuse identified by the Respondent. Conclusion

[125]The Tribunal has stood back and considered the proceedings as a whole. It has reminded itself that striking out a discrimination claim is a significant step, and it has considered whether a less restrictive course, including further amendment or a deposit order, would adequately protect the interests of justice. PHCM Order 23 of 27 September 2023

[126]In the Tribunal's judgment, it would not. The essential difficulty with the present proceedings is not merely one of pleading. It is that the claim, viewed objectively, seeks to litigate matters that have already been finally determined or which should properly have formed part of the earlier proceedings.

[127]That difficulty cannot be cured by amendment. Nor would a deposit order be appropriate where the principal defect is abuse of process rather than evidential weakness. The continuation of these proceedings would require the Respondent to defend extensive litigation concerning matters that have already been the subject of final judicial determination.

[128]It would also create a real risk of inconsistent findings by different Employment Tribunals. Such an outcome would be incompatible with the principles of finality, the overriding objective and the proper administration of justice.

[129]The Tribunal therefore concludes that the Respondent has established the grounds relied upon under Rule 38, and it follows that the claim should be struck out.

[130]The Tribunal now turns to the exercise of its discretion and to the formal disposal of the Respondent's application. Exercise of the Tribunal's Discretion

[131]The Tribunal has concluded that one or more of the grounds contained within Rule 38 are established. It does not follow automatically that the claim should be struck out. The Tribunal must still determine whether, in the exercise of its discretion, such an order is the just and proportionate course.

[132]The Tribunal has approached that question with particular care. It recognises that strike out represents one of the most significant case management powers available to an Employment Tribunal. The consequence is that a party is deprived of the opportunity to have their substantive claims determined at a final hearing. PHCM Order 24 of 27 September 2023

[133]Accordingly, the Tribunal has considered whether there exists any lesser order capable of achieving justice between the parties. The Tribunal has considered, in particular, whether further amendment, further case management directions, a deposit order, and/or the striking out of only part of the claim would constitute appropriate alternatives.

[134]For the reasons already given, the Tribunal has concluded that they would not. The essential defect identified by the Tribunal is not one of form but of substance. The proceedings are fundamentally affected by the operation of issue estoppel and the principle in Henderson v Henderson.

[135]The Tribunal notes that previous Employment Judges afforded the Claimant repeated opportunities to clarify, particularise and reformulate her claims. Those opportunities were provided over an extended period of case management.

[136]The Tribunal accepts that the Claimant engaged with that process. Nevertheless, despite those opportunities, the essential overlap between the present proceedings and the earlier litigation has remained. The Tribunal is therefore satisfied that no realistic prospect exists that further amendments would cure the abuse identified.

[137]The Tribunal has also considered the proportionality of making a strike-out order. The Claimant understandably considers that she has not obtained justice in respect of her employment with the Respondent. The Tribunal does not doubt the sincerity with which those views are held.

[138]However, the Tribunal's task is not to revisit the merits of the earlier litigation. Parliament has established procedures for review and appeal where a party contends that an Employment Tribunal has erred, and the present claim cannot properly be used as an alternative means of reopening matters that have already been finally determined. PHCM Order 25 of 27 September 2023

[139]The Respondent is entitled to rely upon the finality of the earlier judgments, and is also entitled to be protected from the burden and expense of defending successive proceedings concerning substantially the same factual matters.

[140]The Tribunal considers that the continuation of the present proceedings would impose a wholly disproportionate burden upon both the Respondent and the Tribunal system. It would inevitably require extensive evidence concerning matters already examined at length during the earlier litigation, and would require witnesses to revisit factual disputes which have already been the subject of detailed judicial findings. It would involve the duplication of substantial judicial resources, with the result that such an outcome would be contrary to the overriding objective.

[141]Standing back and considering the litigation as a whole, the Tribunal is satisfied that the proper administration of justice requires finality. The Tribunal therefore concludes that the appropriate exercise of its discretion is to strike out the proceedings in their entirety. The Amendment Application

[142]In light of the Tribunal's conclusion upon the Respondent's Rule 38 application, it remains necessary to determine the Claimant's outstanding amendment application. The Tribunal has considered that application independently, and has not proceeded upon the basis that refusal follows automatically from the strike out.

[143]The Tribunal accepts that amendments should generally be permitted where they enable the real issues between the parties to be determined fairly. However, amendments cannot be permitted where they would introduce claims that are themselves legally barred. Nor should amendments be permitted where they would facilitate proceedings constituting an abuse of process.

[144]The Tribunal has considered the proposed amendments individually and collectively. The majority seek to expand allegations already contained within the PHCM Order 26 of 27 September 2023 existing ET1. Others seek to introduce further factual matters arising from substantially the same chronology.

[145]For the reasons already set out, the Tribunal concludes that those allegations are either barred by issue estoppel, barred by the principle in Henderson v Henderson, or disclose no reasonable prospect of success. In those circumstances the amendment application is refused. Approved by: EJ Murdin On the Date: 27th July 2026 PHCM Order 27 of 27 September 2023