Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The claim was issued in the London East Employment Tribunals on 3rd June 2024. The respondents have failed to present a valid response on time. The Employment Judge has decided that a determination can properly be made of the claim, in accordance with Rule 21 of the Rules of Procedure.[2]In the Judgment in case number 3313273/2019 Huangs Grill Limited was found to have discriminated against the Claimant on grounds of her pregnancy and in the Reasons in that case, Yingshang Huang was found to have personally committed acts of pregnancy discrimination, namely to have made up a redundancy story to cover up his deliberate poor treatment of the Claimant, his pregnant employee. Parties agreed settlement of that claim in the sum of £35,492.31 which was due to be paid to the Claimant on or before 4th August 2023. Despite the Claimant’s attempts to enforce this judgment in the civil courts that amount remains outstanding in full, as Huangs Grill Limited’s latest filed accounts record a net liability of £807,124.[3]The only Respondent in case number 3313273/2019 was Huangs Grill Limited. Subsequently the Claimant learnt an individual person can be liable for acts of discrimination. The Claimant commenced this claim (6003232/2024) in an attempt to hold Yingshang Huang, director of Huangs Grill Limited, personally liable for the pregnancy discrimination attributed to him in claim 3313273/2019. Despite the time that has elapsed since the act of discrimination, I am satisfied the tribunal has jurisdiction to consider this claim, as section 123(1) Equality Act 2010 provides a discrimination claim may be brought within “such other period as the employment tribunal thinks just and equitable”.[5]I am satisfied the Second Respondent, Yingshang Huang, has discriminated against the Claimant on grounds of her pregnancy and must pay the claimant £35,492.31. Case Number: 6003232/2024[6]The claims against the First Respondent and Third Respondent are dismissed.[1]the Tribunal’s judgment (sent to the parties on 1 October 2024) in relation to the First and Third Respondents is confirmed; the claims against them stand dismissed;[2]the Tribunal’s judgment in relation to the Second Respondent is revoked;[3]the claims against the Second Respondent are struck out under rule 38: the same claims against the same Respondent having previously been struck out in Case No. 3311325/2023, the doctrine of cause of action estoppel prevents the Claimant from seeking to relitigate them; consequently, it was unreasonable to issue these proceedings and/or the claims have no reasonable prospects of success.
REASONS
[1]By a judgment sent to the parties on 1 October 2024, after a hearing on 16 September 2024, EJ Howden-Evans upheld claims of direct pregnancy discrimination against the Second Respondent in these proceedings (‘R2’); she awarded compensation in the amount of £35,492.31.[2]R2 applied for reconsideration of EJ Howden Evans’ judgment by an email dated 15 October 2024. The Claimant opposed the reconsideration application by letters dated 16 October 2024 and 20 January 2025. Procedural history[3]The Claimant was employed by Huangs Grill Limited as Assistant Manager from 18 July 2018 to 17 February 2019. This is the third claim the Claimant has brought in relation to her dismissal in 2019. The background is as follows. Case No. 3313273/2019 (‘the first case’)[4]The Claimant’s first case was heard in 2023 at Watford Tribunal before a full Tribunal, EJ Tobin presiding. The sole Respondent was Huangs Grill Limited, the Claimant’s former employer. By a judgment sent to the parties on 6 March 2023, the Tribunal found that in February 2019 the Claimant was automatically unfairly dismissed because of pregnancy under s.99 ERA (by way of a sham redundancy); and that the dismissal was an act of pregnancy discrimination under s.18 EqA.[5]The parties agreed the remedy aspect of the case in the amount of £35,492.31, which was due to be paid to the Claimant by 4 August 2023. EJ Tobin recorded that outcome and brought the proceedings to a conclusion in a consent judgment which was sent to the parties on 21 July 2023.[6]The Respondent did not pay the agreed compensation to the Claimant. She attempted to enforce the judgment through the High Court; the enforcement agents were informed that Huangs Grill Limited was bankrupt and that the debt would not be paid. Case No. 3311325/2023 (‘the second case’)[7]On 2 October 2023, the Claimant presented a second case in Watford ET, this time against R2, seeking to hold him personally liable for the discrimination which had been found to have occurred in the first case. The Claimant acknowledged that the claim was out of time.[8]At a hearing in Watford ET on 10 May 2024, EJ Matthews struck the case out on the grounds that there was no reasonable prospect of the Tribunal’s accepting jurisdiction, having regard to time limits. That judgment was sent to the parties on 25 June 2024.[9]The Claimant applied for reconsideration of EJ Matthews’ judgment on 26 July 2024. The Judge refused the application on 13 September 2024.[10]The Claimant appealed against EJ Matthews’ judgment to the EAT. The appeal was rejected on the sift by HHJ Tayler on 4 November 2024, who wrote: ‘An appeal lies only on a “question of law”. The Employment Tribunal struck out the claim on the basis that there were no reasonable prospects of the claimant succeeding in establishing that the claim was submitted within time, by application of a time limit permitting a claim to be brought over four years after the events in question, on just and equitable grounds. The grounds set out arguments that were or could and should have been raised before the Employment Tribunal. I do not consider they set out any arguable error of law.’ Case No. 6003232/2024 (‘the third case’)[11]The claim form in the case with which I was concerned at this hearing was presented in the East London region on 3 June 2024, after an ACAS early conciliation period between 28 May 2024 and 3 June 2024. The claims are the same as in the first and second cases.[12]There were three respondents to this case: the First Respondent, Huangs Catering Limited (‘R1’) is a company operating in the catering and restaurant sector; R2 is a Director of R1 and of Huangs Grill Limited; the Third Respondent. Ms Janice Kim (‘R3’), is a manager who was criticised in the first case.[13]In her ET1 the Claimant referred to the first case against Huangs Grill Limited; she listed the case number of the second case and R2’s name on the form, but made no further reference to it in the particulars of claim.[14]The claim form, which was issued in the East London region, was served on the Respondents on 4 July 2024, with a deadline for submitting a response of 1 August 2024.[15]By a notice of hearing dated 4 July 2024, the case was listed for a preliminary hearing for case management on 16 September 2024.[16]R2 and his adviser, Mr Murrell, prepared responses for all three Respondents, but R2 mistakenly submitted them (within the relevant time limit) to Watford ET, rather than East London ET. Mr Murrell did not discover this mistake until the day of the hearing on 16 September 2024.[17]On 14 August 2024, the Tribunal wrote to the Respondents warning them of the consequences of not submitting an ET3 response under what was then Rule 21 of the 2013 Tribunal rules.[18]On the same day the Regional Employment Judge wrote to the parties as follows: ‘The Preliminary Hearing on 16 September 2024 at 12:00PM by Cloud Video Platform will be converted to a Preliminary Hearing Public to consider strike[-out] of claims which Employment Tribunal does not have jurisdiction to consider. Employment Tribunal does not have jurisdiction relating to enforcement of previous Employment Tribunal judgments.’[19]On 16 August 2024, an amended notice for the preliminary hearing was sent out, confirming that the start time of the hearing was 12 p.m. and that the judge at the hearing would decide the issues contained in the letter from REJ Burgher of 14 August 2024, i.e. the potential striking-out of the Claimant’s case.[20]On 28 August 2024, the three Respondents wrote to East London Tribunal to say that they had lodged ET3s on or about 26 July 2024. ‘I refer you, in particular, to paragraph 11 of paragraphs 6.1 of the Forms CT3 where we requested that, in advance of the preliminary hearing listed for 16th September, the Claimant’s claim should be considered and, in our submission, struck out. This claim is a repeat of the Claimant’s claim (3311325/2023) which was struck out on 10th May 2024 as it had no reasonable prospects of success. To issue the same claim based on the same grounds and seeking the same relief but against the same Respondent and two additional Respondents is an abuse of process. and will only serve to waste the Tribunal’s time and incur unnecessary costs.’ The hearing before EJ Howden-Evans[21]R2 and Mr Murrell intended to attend the hearing on 16 September 2024. They logged into the hearing shortly before 12 p.m. which is when they believed it was to begin.[22]However, on the morning of 16 September 2024, the hearing had been brought forward from 12 p.m. to 10 a.m. It is unclear when that happened or how it was communicated to the parties by the Tribunal. The only document I was taken to was an email from one of the Tribunal staff to the Respondents timed at 12.15 p.m. saying that the hearing had already started at 10 a.m.[23]The hearing went ahead before Employment Judge Howden-Evans in the absence of R2 and Mr Murrell. By a judgment dated 16 September 2024, sent to the parties on 1 October 2024, the Judge considered the claim under Rule 21 because no response had been received by the Tribunal.[24]The Judge gave judgment for the Claimant against the Second Respondent; she held as follows: ‘The only Respondent in case number 3313273/2019 was Huangs Grill Limited. Subsequently the Claimant learnt an individual person can be liable for acts of discrimination. The Claimant commenced this claim (6003232/2024) in an attempt to hold Yingshang Huang, director of Huangs Grill Limited, personally liable for the pregnancy discrimination attributed to him in claim 3313273/2019. Despite the time that has elapsed since the act of discrimination, I am satisfied the tribunal has jurisdiction to consider this claim, as section 123(1) Equality Act 2010 provides a discrimination claim may be brought within “such other period as the employment tribunal thinks just and equitable”. I am satisfied the Second Respondent, Yingshang Huang, has discriminated against the Claimant on grounds of her pregnancy and must pay the claimant £35,492.31. The claims against the First Respondent and Third Respondent are dismissed.’[25]The Claimant confirmed at the hearing today that she has not challenged, and does not seek to challenge, the Judge’s decision in relation to R1 and R3.[26]Although the Claimant says that she believes the Judge knew about the second case, there is no indication in the judgment itself that she knew that it had been struck out, that the reconsideration application had been rejected by the ET in Watford and that an appeal had been dismissed by the EAT. The EJ Tobin reconsideration[27]On 23 September 2024 the Claimant applied to EJ Tobin for a reconsideration of his judgment bringing the first case to a conclusion.[28]By letter dated 13 November 2024, EJ Tobin refused the application: ‘The Claimant’s application for reconsideration is in fact an application to amend her claim to provide for the addition of a party (namely Mr Yingshang Huang) under Rule 34 of the Employment Tribunal Rules of Procedure 2013. The application to reconsider is refused pursuant to Rule 72(1) as I consider there is no reasonable prospects of the original decision being varied or revoked. The proceedings are concluded. Judgement was given for the Claimant in respect of discrimination on the grounds of her pregnancy; unfair dismissal on the grounds of her pregnancy; and breach of contract for her notice period. Remedy was resolved by a final consent judgement which recorded a monetary settlement. I am sympathetic to the Claimant’s predicament. The Tribunal found that Mr Huang’s evidence was unreliable and dishonest. He concocted a story to cover up his poor treatment of a pregnant employee and her subsequent unfair and discriminatory dismissal. It is extraordinary that Mr Huang agreed a settlement on behalf of the Respondent company, and then, I am advised and believe, he/the company failed to pay the amount agreed or even any part of it. However, this is not a matter that I can deal with by reviving concluded proceedings. It may be that Mr Huang is unfit to hold the office of a company director, but the Employment Tribunal cannot make that assessment as that avenue lies elsewhere. I can only say that the Claimant’s predicament is, regrettably, a problem with enforcement, which I cannot remedy so long after proceedings have been concluded.’ The reconsideration application in the third case[29]By a letter dated 30 January 2025, EJ Howden-Evans listed a one-day hearing to consider whether it is necessary in the interests of justice for her judgment dated 16 September 2024 to be reconsidered. Directions were given for the exchange of documents and witness statements.[30]Because EJ Howden-Evans is not sitting at present, the Regional Employment Judge assigned the hearing to me. I was satisfied that I was able to deal with it today. The relevant events can all be discerned from the documents. Although I had three helpful witness statements, both parties agreed that there was no need for me to hear live evidence, as they did not wish to cross-examine.[31]I had a bundle of documents running to 190 pages. I heard submission from both parties.[32]At para 21 of the witness statement the Claimant prepared for this hearing, she wrote: ‘Unfortunately, Judge S. Matthews has struck out my claim, I have sent reconsideration and cc Respondent.’[33]She makes no reference to the fact that the reconsideration application and subsequent appeal were both rejected. At para 28, the Claimant wrote: ‘In the circumstance, I am asking the Tribunal to accept the discrimination claim out of time and allow me to pursue Mr Huang for compensation.’[34]In circumstances where the East London ET has not received and accepted an ET3 from R2, and there has been no application for an extension of time, rule 22(3) provides that ‘the respondent may only participate in any hearing on that claim to the extent permitted by the Tribunal’. Accordingly, I have a discretion to permit R2 to participate in the hearing. I decided to permit him to do so fully. If I did not do so, it would prevent him from dealing with the reconsideration application for which EJ Howden-Evans listed this hearing (knowing that no ET3 had been submitted in time). The only alternative would have been to postpone the hearing to allow for the process of re-submitting the ET3 in this region and applying for an extension of time. That would lead to substantial further delay and costs in proceedings which have already been beset by delay; it would not be a good use of scarce Tribunal resources.
The law
[35]Phipson on Evidence (21st Edition) paras 43-23 and 43-24 explains: ‘A final adjudication of a legal dispute is conclusive as between the parties to the litigation and their privies as to the matters necessarily determined, and the conclusions on these matters cannot be challenged in subsequent litigation between them (whether in separate proceedings or at a later stage of the same proceedings). This principle applies absolutely to a conclusion that a cause of action does not exist, but it will not apply to other issues necessarily determined if there are special circumstances. The principle that estoppels arise from a judgment in previous litigation between the same parties applies in general to all civil litigation, including arbitrations, civil proceedings in courts of summary jurisdiction and public law proceedings. A cause of action estoppel operates to prevent a party relitigating a claim he has lost, even if he is now able to show that the earlier decision was wrong.’[36]According to the analysis of Lord Sumption in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160, SC, the House of Lords decision in Arnold v National Westminster Bank plc (No.1) [1991] 2 AC 93, HL, is authority for the proposition that cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action. Lord Sumption explained the rationale behind the absolute character of estoppel in these circumstances as follows: ‘Where the existence or non-existence of a cause of action has been decided in earlier proceedings, to allow a direct challenge to the outcome, even in changed circumstances and with material not available before, offends the core policy against the relitigation of identical claims’.
Conclusions
[37]In the judgment which is the subject of this application, the Judge did not explain the basis on which she considered that it was open to her to determine the case under rule 21 (now 22) at a hearing which had been listed for another purpose altogether: to deal with the question of whether the Claimant’s case should be struck out. That question is not mentioned at all; it is possible that the Judge had not seen the letter from REJ Burgher. In my judgment, it was not open to her to convert the hearing to a different kind of hearing, without giving notice to the parties. Indeed, absent a material change of circumstance, it was not an option at all.[38]Further, the Judge extended time on a just and equitable basis for the Claimant to bring her claim of discriminatory dismissal against R2 without giving reasons as to the evidential or legal basis on which she decided to do so.[39]For those reasons alone, I am satisfied that the judgment would have to be reconsidered.[40]In extending time for the Claimant to bring against R2 claims which had been determined in the first case, the Judge purported to determine a jurisdictional issue which had already been definitively determined in the second case. EJ Matthews had already decided that time should not be extended to permit the Claimant to bring the same claims against R2. The Claimant subsequently exhausted all legitimate routes to challenge that conclusion: her application for a reconsideration of that decision was dismissed; her appeal against the decision was dismissed.[41]The Claimant pointed out that the case number of the second case and the name of the respondent (but no more) was provided in the ET1 form; she could not remember whether she gave the judge a copy of the second case. I think it likely that EJ Howden-Evans did not see any documents relating to the second case (she makes no reference to them in her judgment); if she had, I think it extremely unlikely that she would have proceeded as she did.[42]The doctrine of cause of action estoppel provides that a final adjudication of a legal dispute is conclusive as between the parties to the litigation and the conclusions on these matters cannot be challenged in subsequent litigation between them, including in separate proceedings.[43]The determination by EJ Matthews was a final determination of the cause of action against Mr Huang and, in particular, as to the prospects of success of persuading a tribunal to extend time and accept jurisdiction in relation to it. By issuing the third case, the Claimant attempted to relitigate the same cause of action against the same respondent, which had been struck out by EJ Matthews; as a matter of law, she is estopped (prevented) from doing so.[44]Accordingly, the claims against R2 in the third case are struck out because it was unreasonable to bring the case and/or the claims against R2 have no prospect of success.[45]I understand the Claimant’s frustration that she has been unable to enforce her original judgment. The second case was, in my judgment a legitimate step for her to take, but one which failed at first instance and on appeal. This third attempt to circumvent a previous Tribunal ruling by issuing proceedings for a third time was, however, ill-advised. Approved by