B Dangarembizi v Commissioners for HM Revenue and Customs: 2402133/2024 and Others
EMPLOYMENT TRIBUNALS
Case No 2402133/2024, 2411644/2023, 2403430/2024
Between
B DangarembiziClaimantCommissioners for HM Revenue and CustomsRespondent
Before
Employment Judge BattenIn person for claimantN Flanagan (instructed by Counsel) for respondentDate 9 January 2026
JUDGMENT
Upon the applications of the respondent and upon hearing from Counsel for the respondent and from the claimant, the judgment of the Tribunal is that the claimant's claims numbered 2411644/2023 and 2403430/2024 (known as claims 6 and 8) are struck out because they have no reasonable prospects of success. Claim number 2402133/2024 (known as claim 7) shall proceed to a case management preliminary hearing on 9 April 2025 at 10am by video platform. JUDGMENT having been sent to the parties on 16 December 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]This preliminary hearing was listed to deal with the respondent’s 2 applications for strike out. The first application was made on 24 June 2024 in relation to claim number 2411644/2023, contending that the claim had no reasonable prospects of success. The second application was made on 14 November 2024 in relation to claim number 2403430/2024, contending that the claim was an abuse of process and also out of time. In each application, the respondent sought deposit orders in the alternative.[2]This preliminary hearing was listed for 2 days, because the respondent’s written applications were extensive and detailed, covering 2 of the 3 claims brought by the claimant in a series of claims he has made to the Tribunal over several years. The claimant’s written submissions in reply were also extensive and detailed.[3]The Tribunal was provided with a bundle of relevant documents comprising 388 pages and took the morning of day 1 to read the numerous key documents identified by the parties. The Tribunal then heard oral submissions from the respondent in the afternoon of day 1 and oral submissions from the claimant on the morning of day 2. Regrettably, the claimant’s internet connection was interrupted at one point, for approximately 30 minutes but, once connectivity had been restored, the hearing proceeded. The Tribunal was satisfied that this interruption did not ultimately affect the claimant’ ability to make and complete his submissions once the connection had been re-established.
The applicable law
[4]Rule 37(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, in force at the date of this hearing (“the ET Rules”) provides that at any stage of the proceedings either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim on any of the following grounds: 4.1. that it is scandalous or vexatious or has no reasonable prospect of success; 4.2. that the manner in which the proceedings have been conducted by the claimant has been scandalous, unreasonable or vexatious.[5]Rule 39(1) of the ET Rules provides that where a Tribunal considers any specific allegation or argument in a claim or response has little reasonable prospects of success, the Tribunal may order the party concerned to pay a deposit no exceeding £1,000.00 as a condition of continuing to advance that allegation or argument.[6]In Abergaze and Shrewsbury College of Arts and Technology [2009] EWCA Civ 96 Elias LJ at paragraph 15 of the judgment, held that: “In the case of a strike out application …, it is well established that before a claim can be struck out, it is necessary to establish that the conduct complained of was scandalous, unreasonable or vexatious conduct in the proceedings; that the result of that conduct was that there could not be a fair trial; and that the imposition of the strike out sanction was proportionate. If some lesser sanction is appropriate and consistent with a fair trial, then the strike out should not be employed.”[7]His Honour Judge Taylor in the Employment Appeal Tribunal summarised the legal position regarding cases of no reasonable prospects of success in Cox -v- Adecco and others [2021] ICR 1307 at paragraph 28 and made the following observations: “(1) No-one gains by truly hopeless cases being pursued to a hearing; (2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is rarely appropriate; (3) If the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate; (4) The claimant’s case must ordinarily be taken at its highest; (5) It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is; (6) This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim; (7) In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stress of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. (8) Respondents, particularly if legally represented, in accordance with their duties to assist the Tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the Tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would d be expected of a lawyer; (9) If the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.”[8]In addition to the legal principles of “res judicata” and “issue estoppel, the case of Henderson v Henderson [1843] UKPC 6 is authority for the requirement on a party to bring forward their whole case and not be permitted to re-open matters which might but were not brought forward earlier or were omitted, whether because of negligence, inadvertence or even accident. In particular: “The plea of res judicata applies … not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”[9]The rule in Henderson v Henderson was considered to be an abuse of process by Lord Bingham in Johnson v Gore Wood [2002] 2 AC 1 as follows: “The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied that claim or defence should have been raised in the earlier proceedings if it was to be raised at all. … it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse that to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances.”[10]In Virgin Atlantic Airways v Zodiac Seats UK Limited [2014] AC 160, the Supreme Court confirmed that parties may be estopped from raising causes of action or issues that could or should have been raised in earlier proceedings under the legal doctrine of “res judicata”. Lord Sumption confirmed that the rule is far wider than the narrow concepts of ‘cause of action estoppel’ and ‘issue estoppel’ including where the parties in different sets of proceedings are the same. Background to the claims in issue[11]The claimant has, since late 2019, issued a total of 8 claims in the Employment Tribunal against the respondent, of which the live claims in issue today are numbers 6 and 8 in that sequence. The respondent does not apply to strike out claim number 7 (2402133/2024).[12]Claims 1 to 4 went to a 10-day hearing from 16 to 27 May 2022 with judgment on liability issued on 23 June 2022. Claims 1 to 4 subsequently settled under a COT3 brokered by ACAS, on 19 January 2023. That same day, the claimant unequivocally withdrew claims 1-4 as part of the terms of settlement. A judgment dismissing claims 1-4 on withdrawal, pursuant to Rule 52, was issued on 30 January 2023. There was therefore a clear and final settlement of those proceedings, despite that the claimant has sought to challenge aspects of the settlement at this preliminary hearing. By his own admission, the claimant has been paid out under the settlement agreement; nevertheless, he argues that certain matters, previously covered by the settlement, should still proceed.[13]Claim number 5 was issued on 8 June 2023 and subsequently withdrawn on 13 July 2023, resulting in a judgment dismissing that claim upon withdrawal. In those circumstances, I consider that the claimant had ample opportunity to pursue the complaints raised in claims 1 – 5, to settle them, to ‘take the money’ so to speak and to withdraw as appropriate.[14]The claimant has since issued claims 6, 7 and 8, which are currently listed for a 15-day final hearing, from 5 to 23 January 2026. As the respondent’s applications relate only to claims 6 and 8, claim 7 will proceed to final hearing. Conclusions – claim 6 (2411644/2023)[15]In light of the settlement agreement in claims 1-4, on 19 January 2023, the Tribunal considered that allegations about events prior to 19 January 2023 cannot proceed. The settlement is binding on the parties, despite that the claimant has tried to persuade the Tribunal, at this hearing, that matters from 2022 onwards can nevertheless still be litigated as some form of continuing act, and regardless of the settlement.[16]To illustrate that point, the first 122 paragraphs of the claimant’s statement of claim in claim 6 were about matters before 19 January 2023. They appear in the bundle at pages 16 to 61. That amounts to 46 pages pleading matters previously litigated and which have been the subject of a settlement. They are all matters which the claimant knew of and was contesting before the COT3 was concluded on 19 January 2023. In those circumstances, the Tribunal considered it has no jurisdiction to deal with those points further or again.[17]Claim number 5 was dismissed on withdrawal on 13 July 2023. The Tribunal understands that the withdrawal came about because the COT3 for claims 1-4 had, by then, been satisfied. Therefore, the matters raised in claim 5 have been dismissed. However, the claimant seeks to relitigate those earlier matters by issuing claim 6 and in doing so, seeks to advance allegations that he either has or could have raised earlier. Applying the rule in Henderson v Henderson, as the Tribunal is bound to do, means that those matters pleaded in claim 6, up to 13 July 2023, cannot proceed. Thia means is all the matters raised in claim 6 up to page 75 of the statement of claim. Pages 75-77 comprise the balance of the statement of claim under claim 6. This cover only the issue of the claimant’s pass – see below at paragraph 20 and the allegation of breach of the COT3, a matter over which this Tribunal has no jurisdiction – see paragraph 21 below.[18]As an alternative to the above conclusions, the respondent invited the Tribunal to consider that claims pre-dating 19 June 2023 should be struck out for being out of time, on the basis of early conciliation having been started on 18 September 2023. The Tribunal agreed. It did not consider it just and equitable to extend time for anything before 19 June 2023, taking account of the fact that the claimant had already been involved in litigation with the respondent for several years. By his own admission at this hearing, the claimant knew of the relevant time limits and was aware of a number of the factual bases for his allegations, but he chose not to issue a claim for at least 4 months. In those circumstances, the Tribunal declined to extend time to cover claim 6 and on that basis any event prior to 19 June 2023 cannot proceed.[19]In addition, the Tribunal also considered that claim 6 has no reasonable prospects of success. Claim 6 comprises 8 allegations which are set out in the claimant’s clarification of claim 6, which appears in the preliminary hearing bundle at page 119-122, and which was sent to the respondent on 28 April 2024. The Tribunal went through each of the 8 allegations with the claimant. Dealing with them in turn, matters numbered 1, 2, 3, 4 and 8 clearly arose before January 2023 and are caught by the settlement agreement and are also out of time. In addition, res judicata and/or issue estoppel apply.[20]Allegation number 5 is described as “the issue of team meetings”. This issue was raised in proceedings before June 2023 and is therefore barred out by the withdrawal of claim 5 as explained above.[21]Allegation 6 is the issue of text messages which the claimant contends are suggesting an ill-health resignation in July 2023. The Tribunal was shown the particular text messages which amount to a manager asking the claimant whether he had considered what his GP had said to him. Nothing in the text messages hinted in any way that such an approach by a manager might amount to unlawful discrimination or that there was any prospect of persuading a Tribunal that it amounted to discrimination in the absence of any evidence from which inferences might be drawn and there was no such evidence.. The Tribunal considered at best this was a reasonable enquiry by a concerned manager and something which could have been said to any employee whose GP had suggested that they consider resignation for the sake of their health.[22]Allegation 7 concerns the issue of the Common Civil Service Pass to the claimant, a matter occurring at the start of 2023, and before claim 5 was issued. The claimant took issue with the suggestion that he collect the pass. However, the Tribunal took account of the fact that it was the claimant’s settled opinion that he wanted to work from home and, indeed, he did work from home full-time, as was his wish. He never went into the office and so, there was no reason why he needed a pass. The fact that the respondent had said the claimant would have to come into the office to collect it or make arrangements for its collection if he wanted the pass, matters not. In any event, the claimant made no arrangements, and the respondent did not require him to collect it, although arrangements could have been made. But the claimant chose not to make them. In those circumstances, the Tribunal considered that the claimant suffered no detriment nor disadvantage by not having a pass and the Tribunal therefore concluded that this allegation has no reasonable prospects of success notwithstanding the time points identified above.[23]The claimant sought to challenge the COT3, describing it as invalid because he contended that he had been “induced under duress” to sign it, that the respondent had misrepresented its intentions, and the respondent had subsequently breached the agreement. The Tribunal was mindful of the fact that in the event of breach, the way to pursue redress for such would be through the County Court and not in the Employment Tribunal, by an action for breach of contract. The Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 [SI 1994/1623] provides at section 3 (c) that a claim of breach of contract must be arising or outstanding on the termination of the claimant’s employment for it to be pursued in the Tribunal. The claimant’s employment has not terminated. In any event, the Tribunal found no evidence that the respondent had somehow misrepresented its intentions in settling and there was nothing to suggest that the claimant was induced under duress to sign the COT3. There had apparently been a delay in payment of the settlement sum or part of it. However, the respondent has remedied any breach and paid the claimant in full. The claimant’s suggestion that the COT3 remained invalid was without foundation.[24]In contrast, it appeared to the Tribunal that the claimant wanted to keep the settlement money but also wanted the respondent to have no benefit from the settlement agreement. This begs the question what has the respondent paid for? The claimant was unable or unwilling to respond to this conundrum.[25]The claimant also contended that claim 6 comprised of a number of ongoing acts, the last of which occurred on 14 August 2023 and so all matters in claim 6 were brought in time. However, the Tribunal noted that, in paragraph 28 of the claimant’s written objections to the respondent’s application, he specifically suggests that the matters relied upon include matters raised under the dismissed claims 1-5. The claimant describes events as “part of a broader pattern” of behaviour and therefore contends that discrimination is ongoing, including a failure to make reasonable adjustments. In the course of submissions, the Tribunal referred the claimant to the provisions of section 123 (3) and (4) of the Equality Act 2010 which provides that a failure to do something is to be treated as occurring when the person in question decided on it. The effect of this provision was explained to the claimant. In essence, there is no ‘continuing failure to act’ which allows time to run in the face of a failure to do something, or no series of failures which can be relied upon when calculating limitation.[26]Even if there was a pattern of behaviour as the claimant suggests, the Tribunal has decided that he cannot now go back before or behind the COT3 agreement to re-litigate them. In respect of res judicata, the claimant argued that claims 1-4 had somehow not been withdrawn on their merits and so res judicata did not apply. However, the Tribunal found that those claims had been dismissed upon withdrawal pursuant to Rule 52 and so considered that the reason for withdrawal is irrelevant. The claims stand dismissed and in fact the claimant had himself sought that dismissal when he withdrew.[27]In light of all the above, the Tribunal found that all of those 8 allegations raised in claim 6 have no reasonable prospects of success, are caught by the rule in Henderson v Henderson and are largely out of time in any event. Therefore for several reasons, the Tribunal has decided that claim 6 shall be dismissed. Conclusions – claim 8 (2403430/2024)[28]Claim 8 was presented to the Tribunal on 1 June 2024 and comprises complaints of unfair dismissal, breach of contract and disability discrimination.[29]The claimant was dismissed on 1 February 2024, so the primary limitation period of 3 months expired on 30 April 2024. The claimant commenced ACAS early conciliation on 29 March 2024 and a certificate was issued on 2 April 2024. Claim 7 was then issued on 6 April 2024. However, in the interim, the claimant commenced a second period of ACAS early conciliation on 1 April 2024 and a certificate was issued on 1 May 2024. The claimant then presented claim 8 on 1 June 2024, in reliance on this second certificate. The Tribunal has reviewed and compared claim 7 with claim 8, and has found that claim 8 raises the same matters as claim 7 albeit with some expansion. Claim 8 is effectively a duplicate of claim 7.[30]In the alternative, the Tribunal considered that claim 8 offends the principles in Henderson v Henderson. A party is required to exercise reasonable diligence to bring forward their whole case. Even if, through negligence, inadvertence or forgetfulness, part of that case is omitted, the party will ordinarily not be permitted to bring a further claim later nor to add to the case matters of which they were, or should have been, aware previously, nor thereafter to think of different points and/or ways to bring that litigation all over again. Johnson is authority for the proposition that the claimant’s conduct, in issuing claim 8 amounts to an abuse of process. There is an important public interest in finality in litigation - a party should not be twice vexed in the same manner, as the respondent will be if both claims 7 and 8 proceed.[31]The Tribunal took account of the fact that the factual issues raised in claim 8 all occurred before claim 7 was presented, on 6 April 2024. In those circumstances, the Tribunal also considered that the principle of issue estoppel applies. Early conciliation for claim 8 was started only 2 days after claim 7 was presented and despite that the claimant already had an early conciliation certificate which he had used for claim 7. In HMRC v SerraGerau [2016] UKEAT/0348/16, the EAT found that a claimant cannot have more than one certificate “per matter”. In the claimant’s case, because the factual background to claims 7 and 8 are the same, the second ACAS early conciliation certificate cannot be relied upon by the claimant, following HMRC v Serra-Gerau. Further, if the first certificate is in play, claim 8 is out of time for a complaint about the claimant’s dismissal on 1 February 2024. because extended limitation, based on the first early conciliation certificate, expired on 4 May 2024, long before the claimant presented claim 8, on 1 June 2024.[32]The Tribunal also found that, on 5 February 2024, after his dismissal, the claimant emailed the Tribunal, apparently following ACAS advice about his dismissal. The claimant enquired about whether he could add the circumstances of his dismissal into his existing proceedings, as a new complaint or whether he should submit a fresh claim. Therefore, it is apparent that the claimant had it in mind to pursue a claim about his dismissal. On 27 February 2024, the Tribunal replied to the claimant’s enquiry, to the effect that he should bring a further claim “without delay” by way of a new claim form. It was therefore abundantly clear what the claimant needed to do and that he needed to get on with it.[33]Nevertheless, on 27 February 2024, the claimant sent an email to the Tribunal, saying that he will wait for the conclusion of his internal appeal before taking action. The internal appeal concluded on 21 March 2024, when the claimant received the appeal outcome in writing. This led to the presentation of claim 7, on 6 April 2024 after a short period of early conciliation between 29 March and 2 April 2024. The claimant did not need a second early conciliation certificate; the matters raised in claims 7 and 8 are not severable or distinct.[34]In response to the respondent’s application to strike out claim 8, the claimant protested that the application had been made on 14 November 2024, such that the claimant said he only had 10 days to process and understand the application and he contended at this preliminary hearing that he had only been able to produce “limited submissions”. However, the Tribunal noted that the claimant had managed to produce 10 pages of tightly typed written submissions, by 25 November 2024. In addition, he had the opportunity at this preliminary hearing, to expand on those written submissions, to respond to the respondent’s oral application and to plug any gaps that appeared. and lets face it. This hearing took place on 5 and 6 December 2024, so the claimant has had another 10 days to consider matters. The claimant took over twice the time, in delivering his oral submissions, as the respondent did in submissions about its applications. In those circumstances, the Tribunal was satisfied that the claimant has been afforded ample time to respond to the respondent’s applications and has done so in great detail.[35]On the point about the claimant going to ACAS early conciliation twice, the claimant pointed out that there were separate early conciliation numbers for claims 7 and 8. In his written submissions, the claimant contended that the first ACAS early conciliation was “used up” on claim 7 and not carried over to claim 8 and so he had to get a second certificate. The Tribunal disagreed. The Tribunal understands that, when a prospective claimant commences early conciliation, whether online or by telephone, they only have to give ACAS their name, address and contact details, together with those of the prospective respondent(s). A prospective claimant is not required to give any details of what the claim is about in order to commence early conciliation. Nevertheless, it was apparent from the claimant’s correspondence with the Tribunal around the time he first approached ACAS, leading to claim 7, that he had in mind a claim about his dismissal.[36]Claim 7 is about events in December 2023, and about disciplinary action leading to the claimant’s dismissal. As explained above, ACAS early conciliation started on 29 March 2024, so calculating back 3 months includes the time of the claimant’s dismissal on 1 February 2024. The ET1 claim form for claim 7 appears in the preliminary hearing bundle, at pages 127 to 138. Section 5 of the claim form is about employment dates and details, is left empty save for a tick in the box to indicate that the claimant’s employment was not continuing. In section 8.1, the claimant has not ticked the box to indicate an unfair dismissal complaint. However, the claim form was accompanied by a lengthy statement of claim, running to 15 pages of tightly typed text. Paragraph 19 of the statement of claim on page 5 of the statement of claim 7, in the bundle at page 143, sets out the circumstances of the claimant’s dismissal. The events set out in the statement of claim go through to the appeal. The statement of claim finishes with a paragraph, on page 153 of the bundle, which again mentions the claimant’s dismissal. All of this serves to highlight that a claim about his dismissal was in the claimant’s mind; in effect, claim 7 included a claim about dismissal.[37]Nevertheless, the claimant has contended at this preliminary hearing that his dismissal is a separate matter to those set out in claim 7 because he has a separate early conciliation certificate for it and a separate claim form, being claim 8. The Tribunal rejected the claimant’s interpretation of the 2 claims. Upon reading the documents presented for claim 7 and for claim 8, it is clear that matters are entwined, both in fact and also in the claimant’s mind as they are pleaded in both claims 7 and 8. In those circumstances, the Tribunal considered that the claimant having obtained a second early conciliation certificate was an attempt to gain an extension of early conciliation, by the back door. However, case law authority, HMRC v SerraGerau, does not allow for such.[38]In light of all the above, claim 8 shall be dismissed as a duplicate of claim 7 and as an abuse of process, notwithstanding the fact that it is out of time absent an extension which this Tribunal declines to grant. Case management preliminary hearing[39]Following judgment dismissing claims 6 and 8, only claim 7 proceeds. A case management preliminary hearing was therefore listed by consent to take place on Wednesday 9 April 2025 by Video Platform. The preliminary hearing will be conducted by an Employment Judge. The hearing will start at 10.00 am with a time estimate of 3 hours. The parties must arrive by 9.30 am.[40]The case management preliminary hearing shall decide the length of the final hearing in the light of this judgment, and shall make necessary case management Orders to prepare for that final hearing. In addition, the list of issues shall then be finalised, based on claim 7 only. The respondent’s representative has helpfully offered to produce a first draft list of issues for discussion at the preliminary hearing.[41]If any party thinks that more or less time will be needed for the preliminary hearing, they must tell the Tribunal as soon as possible.
The applicable law
[1]The Tribunal did not have jurisdiction to determine the claim for victimisation relying upon the alleged detriment in/from Mr Wordsworth-Gibbs’ report of 21 November 2023 as the claim was not brought within the applicable time limit. It was not just and equitable to extend the time limit. The complaint is therefore dismissed.[2]The complaints of unfavourable treatment because of something arising in consequence of disability are not well-founded and are dismissed.[3]The complaints of failure to make reasonable adjustments for disability are not well-founded and are dismissed.[4]The complaints of harassment related to disability are not well-founded and are dismissed.[5]The complaints of victimisation are not well-founded and are dismissed.