Ms K Rowbottom v Syriana One Ltd and Mr K Al Sabbah: 6004789/2024 and 6005070/2024
EMPLOYMENT TRIBUNALS
Case No 6004789/2024, 6005070/2024
Between
Ms K RowbottomClaimantSyriana One Ltd and Mr K Al SabbahRespondent
Before
Employment Judge LeachIn person for claimantDate 11 November 2025
JUDGMENT
The judgment of the Tribunal is that all complaints are dismissed on the application of: -[1]Rules 50 and 51 Employment Tribunal Rules of Procedure.[2]The rule in Henderson v. Henderson (1843) 3 Hare 100.
REASONS
[1]The claimant was an employee, director and shareholder of the first respondent.[2]In January 2024, the claimant resigned from the office of director although she continued in her employment until she resigned on 16 April 2024 saying that she had been constructively dismissed.[3]The claimant also makes complaints of having been subjected to detriments because she made a protected disclosure and subjected to harassment (protected characteristic, sex) and direct sex discrimination. The detriment, discrimination and harassment complaints are made against both respondents.[4]These 2 claims postdated an earlier claim that the claimant issued. She withdrew that earlier claim and there was a judgment dismissing the claim on that withdrawal. The existence of that earlier claim was not raised during case management of these 2 claims. Its existence became apparent during this final hearing. B. This Hearing[5]This hearing was preceded by correspondence from the claimant to the Tribunal complaining that the respondents had not complied with case management orders; they had not participated to any sufficient extent in disclosure and preparation of a bundle of documents and had not engaged in any contact with the claimant to exchange statements. I am satisfied that the claimant took all reasonable steps to try to engage with the respondent in case management and that the respondent was in serious and inexcusable breach of case management orders.[6]On 22 October 2025 the respondents provided 4 witness statements; one from the second respondent himself; 3 from witnesses who it appears (from the content of the statements) were employed at the first respondent’s restaurant. All these statements are short (4 or 5 lines long) and do not address directly any of the complaints that the claimant has brought other than by making general comments denying that the second respondent discriminated against the claimant.[7]The claimant wrote to the Tribunal to object to these statements, particularly given the late stage that disclosure had been made. At this final hearing she provided helpful written submissions setting out her attempts to comply and engage with the respondents in preparing this case for hearing, commenting on the statements and the bundle just provided and making an application to strike out the response.[8]The claimant also noted that the respondents’ bundle (sent in by the respondents a few days before this hearing and without any attempt to agree it with the claimant) did not contain all relevant documents and prepared her own bundle which she brought on the first day. The claimant had emailed an electronic version of her bundle to the respondent and the Tribunal. Given the size of the electronic bundle, she had broken this into 8 parts, emailing each part separately. The respondents ignored the claimant’s own disclosure even though the case management orders obliged them to assemble an agreed bundle and attend the Tribunal with enough copies for the hearing.[9]The respondents’ non-compliance with case management orders resulted in a shambolic start to this hearing, no agreed bundle and very late presentation of statements.[10]Notwithstanding this, I decided not to strike out the response, Whilst I had no doubt that the respondents’ conduct had been unreasonable for the purposes of Rule 38(1)(b) of the Employment Tribunal Rules of Procedure 2024 (Rules) I decided that it should be possible to proceed with a fair hearing in the 5 days we had available. It would be necessary to delay hearing the evidence until the issue of documents was resolved but enough time was available to attend to this.[11]I also allowed the respondents to rely on their statements but made clear that the evidence of the witnesses (and the second respondent) would be limited to that set out in the statements in addition to any evidence provided in response to cross examination. I was told that 2 witnesses would not attend the hearing. I told the parties that I would consider what, if any, weight I should apply to the statements – noting again the limited evidence that the statement contained.[12]Mr Hamza told me he was not legally qualified. He is an accountant in private practice and is, I understand, the first respondent’s external auditor. Whilst recognising this I also noted that the first respondent had decided to attend the final hearing with a professional representative who was not legally qualified. That was a matter for them.[13]Mr Hamza told me that he had not received or downloaded the bundle of documents sent by the claimant. He had also told me by then that he had received many emails from the claimant on Saturday but only seen these on Monday morning (the first day of the hearing). Mr Hamza also told me that he expected to be able to call Mr Maher (first respondent’s shareholder and director) as a witness. In response to this Mr Hamza was told he would need to draft a statement and an application for permission to rely on yet another late statement.[14]As for the claimant’s bundle, I was not in a position to check with Mr Hamza what he had and had not received I noted that there was an electronic copy on the Tribunal file and decided that the Tribunal would send to Mr Hamza the copy received.[15]Given this, I decided to start hearing the evidence on Tuesday morning. That would give time to send the bundle to Mr Hamza and for Mr Hamza to review it. (217 pages including pleadings). That would also give Mr Maher and Mr Hamza time to draft a proposed statement for Mr Maher and an application for permission to submit the statement so late.[16]I talked the parties through the expected process, noting that I expected to receive the claimant’s evidence on Tuesday morning.[17]Sending the bundle was problematic although ultimately the documents were shared, in tranches. Recognising the problems that had been encountered, on Tuesday morning I offered to Mr Hamza and to Mr Al Sabbah, the option of arranging to photocopy the one hard copy bundle that the claimant had provided. Mr Al Sabbah (but not Mr Hamza) asked to do that, and we adjourned for 2 hours to enable this.[18]We did not therefore start the claimant’s evidence until Tuesday afternoon. I took the claimant through the various page references that she had made in her witness statement, recognising that some were wrong page numbers and that some page references in the electronic bundle differed from the page numbers in the paper bundle. All of this would have been avoided had the respondents engaged in case management and taken the steps they had been ordered to take.[19]Mr Hamza cross examined the claimant on Tuesday afternoon. Mr Al Sabbah cross examined the claimant on Wednesday morning. (By that stage a jurisdiction issue had been identified – which I explain below)[20]The Tribunal arranged for an Arabic interpreter to attend the hearing on Wednesday to help the first respondent’s witnesses give evidence and on Thursday to help Mr Al Sabbah. Mr Al Sabbah was unsure whether he wanted an interpreter, his English being of a good standard. In the end he decided that it would help although when giving evidence he frequently spoke English and answered questions before the interpreter had an opportunity to interpret the question.[21]I heard from 2 witnesses who worked in the kitchens at the first respondent’s restaurant, Mr A. Fadil and Mr J Mohammad. I also heard from the first respondent’s director and majority shareholder, Mr A Maher. I was assisted by Mr Qasem’s interpretation in receiving their evidence.[22]On Thursday afternoon (day 4) I heard evidence from the claimant’s daughter (Ms Gorin) and then from the second respondent.[23]On Thursday afternoon and Friday morning, I heard submissions and reserved judgment. C. Jurisdiction Issue[24]Paragraph 33 of the claimant’s statement referenced the withdrawal of other proceedings. After adjourning on Tuesday afternoon (part way through the claimant’s evidence) I identified from the Employment Tribunal records that the claimant had issued a claim against the first respondent that predated the 2 claims before me. This earlier claim had case number 2402683/2024. I refer to it as the First Claim. In the First Claim, the claimant raised complaints of constructive unfair dismissal, notice pay and unpaid holidays.[25]On resuming the hearing on Wednesday morning, I raised with the parties concerns that I had about Res Judicata and abuse of process (I refer to these as the jurisdiction issues). Having explained the concerns, I provided the parties with relevant extracts from the IDS Handbook and allowed the parties an hour to consider their position and how to proceed. I explained that I saw there were 3 possible options(1) to continue to hear the evidence and give the parties a final outcome, including on the jurisdiction issues;(2) to stop hearing the evidence and to hear submissions about the jurisdiction issues – but recognising that we would lose the time today as the parties would need some time to consider and prepare argument(3) to stop the final hearing, postpone and relist for a preliminary hearing to consider and determine the jurisdiction issues. I encouraged the parties to try to agree a preferred option. I also made clear that if either party told me that they would prefer a postponement and listing of a preliminary hearing then I would probably agree to that.[26]Neither party asked for a postponement. The respondents wanted me to deal with an application to strike out all claims on jurisdiction grounds. The claimant wanted me to continue to hear the evidence and reach a decision on the case this week.[27]I decided to continue to hear the evidence, recognising that it would be possible in the time available, to hear all evidence and submissions – including about the jurisdiction issues. That was the best option of providing finality. D. The Issues[28]A list of issues was drafted by the Judge at the case management hearing in November 2024. Following that hearing, the parties were provided with an opportunity to comment on this list. No comments were received. The parties were reminded that this list set out the complaints and issues that I would make decisions about.[29]The list is annexed to this Judgment. The issues in this list does not include the jurisdictional issues which were identified as explained above.[30]The reference to the witness statement at paragraph 3.1.1.2 of the list of issues is a reference to a statement that the claimant had prepared in compliance with case management orders, before the preliminary hearing (initially the Tribunal office had listed a final hearing). The allegations in the witness statement are the same as the various complaints of harassment and/or discrimination set out at paragraph 9.1 of the list of issues. E. Summary of the claims history - relevant to the Jurisdiction issue[31]The First Claim was presented on 2 May 2024, following early conciliation which began on 23 April 2025 and ended on 29 April 2024.[32]The respondent to the First Claim was named on the claim form as “Ahmad Maher/Syriana”.[33]By letter from the Tribunal dated 14 May 2024, the named respondent was served with the notice of claim and notice of hearing.[34]The complaints raised in the first claim were unfair (constructive) dismissal, and non-payment of holiday pay, notice pay and sick pay.[35]The claimant emailed the Tribunal on 4 June with the following message: “Dear Sir or Madam I hope this email finds you well. The Solicitor acting on behalf of the respondent has been in touch and we have reached an amicable agreement. I would therefore like to withdraw my claim. Thank you for your help.[36]On 14 June 2024 the Tribunal wrote to the parties and sent confirmation that the claim had been withdrawn.[37]On 2 July 2024 the Tribunal wrote to the parties attaching a judgment, dismissing the proceedings following the claimant’s withdrawal.[38]Claim 6004789/24 (Claim 2) was presented on 28 June 2024. The named respondent was Syriana One Ltd. The complaint raised on the claim form was for unfair (constructive) dismissal.[39]Claim 6005070/24 (Claim 3) was presented on 3 July 2025. The named respondents were Syriana One Ltd and Ahmad Maher. The claims raised were unfair dismissal, sex discrimination, whistleblowing and various money claims (notice pay, holiday pay, arrears of pay and other payments). The claim against Mr Maher was rejected on the grounds that the claimant had not provided an ACAS EC certificate naming Mr Maher.[40]Claims 2 and 3 were combined. A preliminary hearing was held on 15 November 2024. The Judge was unaware of the first claim and its withdrawal. Although the respondent had legal representation at the time, they did not raise any jurisdiction issue.[41]At the preliminary hearing, orders were made amending the claim to include complaints of race discrimination and adding Mr Al Sabbah as a party. A list of issues was compiled (taking those amendments into account) which is the list of issues before me. F. Findings of Fact Relevant background[42]The claimant was an employee, director and shareholder in the first respondent and was in a longstanding personal relationship with the second respondent (R2). In January 2024 this position changed.[43]The claimant was a minority shareholder in the first respondent with a 10% shareholding. R2 had a 50% shareholding and Ahmad Maher (AM) held the remaining 40% of shares.[44]The first respondent runs a restaurant in a town near Manchester called Hale Barns. It is called Syriana and specialises in Syrian and Lebanese cooking.[45]The claimant worked 6 days a week in the restaurant. Her usual working hours were from around 11.30am, when she opened the restaurant until around 9pm. The claimant’s salary over the last year of her employment was just £12,500.[46]The claimant and R2 were in a close personal relationship and had been for almost 20 years. They did not cohabit. R2 also had for the most part a good relationship with the claimant’s daughter (LG) who described R2 as having been a father figure to her.[47]The claimant now describes that relationship as controlling at times. My focus has been on events between January and April 2024 rather than events earlier than this. I have however received some background evidence and make the following findings: -a. That the claimant accepted the low salary because R2 assured her that the value of the shareholding would increase.b. That the claimant sometimes asked R2 if she could leave the restaurant early or for time off when her adult sons visited her. Her requests were usually refused.c. In contrast, R2 did sometimes take time away from the restaurant and did not ask the claimant’s permission.d. R2 instructed AM and employees at the restaurant not to speak with the claimant – except on business issues. This finding is supported by AM’s evidence and the evidence of R2 himself. The claimant was not in control of the first respondent or the restaurant[48]The respondents’ position is that the claimant controlled and ran the first respondent. The claimant’s evidence is that this was simply not the case. She was the manager of the restaurant in that for example, she opened the restaurant most mornings, but she was not in control. That was at all times R2.[49]I find that the was not in control of the restaurant. R2 headed up the restaurant. He regarded it as his business and ran it as such. The claimant was helpful. She was a very able administrator. She was able to deal with various utilities bills (her name was on these) and her name was also on the licence. She was able to deal with correspondence and communication with such outside agencies. The 15-20 employees answered to R2. R2 (and AM) recruited and managed those employees. R2 (and AM) were responsible for (and in control of) key issues such as stock, rotas, menus. Whilst the claimant dealt with the administration of some financial issues such as card machine services, utilities and insurance it was R2 and AM who were in control of the finances and who regularly dealt with the external accountant, Mr Hamza.[50]Initially (on the first respondent being set up and the restaurant opening) the claimant considered she may be taking on responsibility for the finances. She acquired a finance programme called QuickBooks. Soon after opening however AM (as a significant investor in the first respondent) insisted on an external accountant being appointed. He wanted an accountant who spoke Arabic. This was understandable. It also suited R2. AM had a financial interest in the first respondent. He wanted to understand (and have explained to him) relevant financial information. A firm called E & M Accountancy was instructed. The claimant provided information to E & M (till receipts for example) so that the accounts could be maintained by them, but the claimant did not control the first respondent’s finances. The QuickBooks programme was not used. January 2024[51]At the end of 2023/beginning of 2024, R2 and AM decided on a new business venture, to open a new restaurant in another town near Manchester called Urmston. The claimant made clear that she did not want to be involved and she was not.[52]In early January 2024, R2 resigned as a director of the first respondent and transferred his 50% shareholding to AM. The claimant was not informed of this. She found out about these steps later in January (another fact undermining the respondents’ evidence that the claimant controlled the first respondent).[53]Notwithstanding his resignation as director and his transfer of shares, R2 continued to operate and control the restaurant. That finding is supported by the evidence from the kitchen staff Mr Fadil and Mr Mohammad). It is also supported by AM whose evidence was initially that the claimant controlled everything, but his evidence changed during cross examination to control being exercised by the claimant and R2. AM had little direct interaction with the claimant. His business relations and discussions were with R2. His information about what the claimant and R2 did, came from R2.[54]In January 2024 AM and R2 formed 2 new companies, Zozo Catering Ltd and Syriana Restaurant Ltd. At least one of the new companies (Syriana Restaurant Ltd) was set up to open and operate the new restaurant in Urmston. R2 wanted the 2 restaurants to operate closely together and merge them. R2 and AM wanted access to R1’s website to add details about the Urmston restaurant. The claimant did not agree, her position being that the 2 businesses should be kept separate.[55]These events strained relations between the claimant and R2. R2’s behaviour towards the claimant changed. I accept the claimant’s evidence as follows: -a. That R2 spoke with all staff in Arabic, even those front of house staff who could speak English. Whilst Arabic was the first language of R2 and all staff at the Hale restaurant, prior to January 2024, some conversations at the front of house had been in English so that the claimant could understand and participate. This stopped in January.b. The claimant suggested to R2 that he buy her out if he wanted to merge the 2 businesses (one of which she had a financial interest in and the other in which she had no financial interest). The claimant also put forward an alternative option of the claimant buying out the respondents.c. The claimant also told R2 that she would resign as a director. R2’s response was to try to persuade the claimant not to resign as a director and to tell her if she did, she would be demoted to a waitress and toilet cleaner.d. R2 told the claimant that AM would “deal with” her - suggesting something sinister – if she did not cooperate by handing over information about the first respondent’s website.[56]The website was set up on the restaurant opening in 2019. The claimant’s sons set up the website and either had administrator’s rights over it directly or (in more recent years) through a third-party web site facilitator and administrator.[57]On or about 20 January 2024 2 letters arrived at the restaurant both from HMRC. One was addressed to Zozo and the other to Syriana Restaurant Ltd. the letters were headed “Important Information for new companies only.” These letters informed the claimant that the 2 businesses had been set up with the registered office address of the Hale restaurant. She was concerned that this was in breach of the terms of the lease of the restaurant premises. When the claimant spoke with R2 about these 2 businesses R2 replied that(1) Zozo was set up to deal with outside catering;(2) he did not know about Syriana Restaurant Ltd. R2 did not address the lease issue when it was raised by the claimant. At the Tribunal hearing R2 stated that registering 2 other companies at the premises, did not break the lease.[58]The claimant was not satisfied with the explanations provided. She was not aware of any (or any proposed) outside catering venture. On 23 January 2024, the claimant raised her concerns again with R2, including concerns that the new business(es) may take funds from the Hale restaurant, R2 replied to say he was not involved in the other businesses and that the claimant was a stupid old English woman.[59]By this stage the claimant had (just) discovered that R2 had resigned from the office of director of the first respondent and transferred all his shares to AM. The claimant then decided to resign as a director, and she did so on 24 January 2024. The claimant and R2 reached an understanding (but not a binding agreement) that R2 would buy the claimant’s shares as long as the claimant assisted by transferring the utility bills and similar issues into R2’s name. The claimant took these steps in February, hoping her shareholding would be bought and she would leave R1 altogether.[60]Unfortunately matters became hostile again in March 2024. R2 continued to speak in Arabic with the waiting staff even though the claimant was in the restaurant at the time and would, previously, have been included in some discussions –about work issues. Payment systems and card terminals[61]In March 2024 the claimant discovered that some payments being taken in the restaurant were not being paid in to the first respondent’s account (and not being taken using the first respondent’s card payment terminals) but were being put into a Zozo account.[62]The claimant photographed and provided evidence of the activity that concerned her. The bundle contains a restaurant bill for a meal for 6 people for £144.65. The bill is headed Syriana with the Hale address. Attached to the bill is the receipt showing that the customer had paid. But the receipt was from Zozo Limited.[63]Various other examples provided by the claimant show payments of bills using a card machine service, provided by a business called Foleys Faster Payments (FFP). The claimant had set up a card machine service through one of the big banks. The claimant had no knowledge of another card machine system provided by FFP.[64]The claimant raised her concerns with R2 about the payments being made to Zozo. R2 responded by insulting the claimant and calling her a stupid old woman. He did not provide the claimant with an explanation about her concerns.[65]In this hearing the respondent was asked why the payment was made to Zozo. His first answer was that it was a payment for a big party. When he was shown the invoice – for £144.60 – his explanation changed; it was for outside catering.[66]R2 has been provided with opportunities to explain these payments; during the claimant’s employment and during these proceedings. I have considered R2s explanations given during the hearing. I do not accept them. 2 explanations were provided that were inconsistent with each other; neither explanation provides a credible reason as to why customers at the restaurant (therefore customers of the first respondent) were paying for meals provided to them by the first respondent, into the account of a different entity. Claimant’s request for financial information[67]The claimant requested financial information from the accountant. As there was no response to her emailed requests, the claimant went to see the accountant (2 April 2024). The accountant (Mr Hamza, who represented the first respondent in this hearing) provided some details but not everything that the claimant asked for. The accountant insisted that a meeting take place with the other shareholders before he provided more detail.[68]The claimant covertly recorded the meeting of 2 April. A transcript of the recording as included in the claimant’s bundle. Mr Hamza objected to this, noting that he did not give permission for the recording to be made and asked that I take no account of it. There was no dispute about the accuracy of the transcript.[69]I decided that I would read the transcript. Mr Hamza’s objection came on day 2 of the final hearing. Had the respondents complied with case management orders, issues relating to disclosed documents could (and should) have been dealt with much earlier at an interlocutory phase. As it was the transcript was in the bundle and referred to in the claimant’s statement. it was an accurate record of a discussion that took place. I decided to take it into account. Events immediately before the claimant’s resignation[70]I accept the claimant’s version of relevant events in the 2 weeks or so leading up to her resignation.[71]On 2 April, the claimant raised with R2 a renewal notice for liability insurance. R2 dismissed the issue stating that the insurance would not be renewed.[72]On 6 April R2 told the claimant that she was only safe because of his protection.[73]On 9 April whilst the claimant was in the restaurant, R2 again told the claimant that she would be relegated to cleaning the toilets. R2 also told the claimant she would be replaced by an Arab male who would be better at the role. He also referenced her safety, intimating that she was subject to threats. These and other comments made by R2 made the claimant leave the restaurant. She did not return to work.[74]On 10 April 2024 the claimant emailed R2 and AM as follows: - “Unfortunately due to stress from the hostile environment at the restaurant and harassment I received yesterday evening, I do not feel able to work and will be taking a period of sick leave. I will provide further notice in due course.”[75]The claimant transferred her 10% shareholding to her sons and informed R2 and AM of this by email of 12 April 2024. I accept that she did this because she wanted to distance herself from the first respondent and R2, she was upset about the way she had been treated and to some extent fearful of the threats to her safety. The claimant did not want to lose the shareholding in case it had some value and her sons agreed to help her. The claimant’s resignation[76]On 16 April the claimant sent her resignation. The terms of the claimant’s resignation letter refer to an increasingly hostile environment, concerns “regarding potentially unlawful practices” and a failure to provide “a safe and respectful working environment.”[77]I accept that the terms of the resignation letter accurately summarise the reasons why the claimant decided to resign. Annual Leave[78]Employees of R2 (including the claimant) were not provided with employment contracts or other documents setting out particulars of employment.[79]The position regarding annual leave was not set out or established. The respondent’s position appeared to be that sometimes the claimant and R2 had holidays overseas and therefore the first respondent’s obligations to provide the claimant with a minimum of 5.6 weeks a year paid leave, was fulfilled. I accept the claimant’s evidence that she and R2 had not been away on holiday for more than a year before her dismissal.[80]I also find that the claimant took a few days leave each year although this was not recorded and was less than the claimant’s statutory entitlement. Relevant events following claimant’s resignation[81]As noted in section E above, the claimant presented the First claim on 2 May 2024 and wrote to withdraw it on 4 June 2024. The claimant’s evidence is that she did so because she expected a settlement to be finalised. It was not. The claimant also gave evidence that R2 persuaded her by telling her that if she pursued the claim then she would be at risk of harm from AM.[82]Whatever the reason, the claimant wrote to the Tribunal and, in clear, unambiguous and unequivocal terms, withdrew her claim. Corroborating Evidence[83]Many of the findings of fact noted above, have resulted in me preferring the evidence of the claimant to that of R2. Many of the allegations arise from discussions between the claimant and R2. There are no witnesses to those discussions. I preferred the claimant’s evidence for these reasons: -a. Having heard the evidence from both parties for myself.b. Corroborating evidence from AM and the 2 kitchen staff witnesses, - that they were told not to speak with the claimant except when required.c. Comments made by the claimant in the meeting with the accountants on 2 April; the transcript shows the claimant told Mr Hamza that her conduct of R2 and AM was “very abusive”d. Comments made by the claimant in correspondence with her sons, to which I was referred.e. The fact of (and terms used in) a complaint the claimant made to the police in June 2024 – “My ex-partner said if I stay with him, he will protect me from any harm. He said I should close the court case I brought against his partner Ahmad Maher for unfair dismissal or else something bad could happen to me. [R2] also said the only reason his business partner Ahmed has not done anything to me so far is out of the respect he has for Khaled. He also told me is business partner had said he would never have allowed his own wife to ignore him and if she did, she wouldn’t be alive.”f. Evidence provided by Ms Gorin, that R2 had told her that AM wanted to do harm to the claimant ( her mum); that the claimant often had to ask R2 for permission to leave work, even when her sons were visiting; that the claimant complained that she was not respected by the other members of staff because she was a woman.g. By the act of the claimant resigning. The claimant had a 10% shareholding in R1 and had worked hard in the restaurant from 2019. Having heard the claimant’s evidence I accept that she walked away from the first respondent because she was deeply unhappy about the way she had been treated. There is no evidence of any other motive.h. The evidence of AM and R2 and particularly their attempts to portray the claimant as the person in charge of R2. This part of their evidence was plainly untrue. Deciding some aspects of a party’s/witness’s evidence as untrue does not of course, mean that the whole testimony is untrue. However, it does put a question mark over the reliability of other aspects of the same person’s evidence, and it did have some influence on my decision to prefer the claimant’s evidence where there was a dispute. G. The Law The jurisdiction issue[84]Rules 50 and 51 of the Employment Tribunal Rules of Procedure 2024 (Rules) provide as follows: - “50. End of Claim Where a party advancing a claim informs the Tribunal either in writing or in the course of a hearing, that their claim, or part of it, is withdrawn, the claim or part, comes to an end, subject to any application that the party responding or replying to the claim may make for a costs order, preparation time order or wasted costs order. 51 Dismissal following withdrawal. Where a claim, or part of it, has been withdrawn under Rule 50 (end of claim) the Tribunal must issue a judgment dismissing it (which mean that the party advancing it may not commence a further claim against the party responding or replying to it raising the same or substantially the same, complaint) unless –(a) The party advancing the claim has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be a legitimate reason for doing so, or(b) The Tribunal believes that to issue such a judgment would not be in the interests of justice.[85]Cause of action estoppel prevents a party from making a claim that has been decided in earlier proceedings between the parties. The Court of Appeal decision in Barber v Staffordshire CC [1996] ICR 379 considered whether a dismissal on withdrawal of a complaint amounted to a decision and decided that it did. The Court made clear that a decision did not have to be a fully reasoned decision. This decision has now been overtaken (or given effect) by the wording of the Rules – see Rule 51 above.[86]A related issue is whether (and if so when) a party is prevented from raising in a later claim, points relevant to a cause of action that was not decided in an earlier claim because it had not been raised in that earlier claim but where the cause could and should have been raised in the earlier claim. The relevant binding authorities are Henderson v Henderson, and Virgin Atlantic v. Zodiac Seats[87]The application of this principle is not limited to cases involving the same parties.[88]I have been guided particularly by the following passage from the House of Lords decision in Johnson and Gore Wood (HL) [2002] 2 AC 1 (“Gore”) (extract below at page 31): “But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. 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 (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than 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. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice. Other areas of Law[89]Given the conclusions reached in relation to the withdrawal of the first claim, it would be disproportionate to set out in any detail the law on the other aspects of the case. However, I note for completeness: -a. When considering the constructive dismissal complaint, I would have regard to relevant case law on the implied term of mutual trust and confidence, including the guidance in Woods v WM Car Services (Peterborough) Limited [1981] ICR 666, in which Browne-Wilkinson said that the tribunal must “look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.” I would also have regard to cases concerning a continuing course of conduct and a “last straw” – particularly the Court of Appeal’s guidance in Kaur v Leeds Teaching Hospitals NHS Trust [2018] IRLR 833.b. When considering the definition of a protected disclosure, I would have regard to the statutory definition at section 43A to H ERA and various relevant cases including Simpson v.Cantor Fitgerald Europe 2020 ICR 236 (“Simpson”)c. When considering the complaints of harassment, I would have regard to the statutory definition at section 26 EQA and the EAT’s 3 step guidance in Richmond Pharmacology Limited v. Dhaliwal [2009] IRLR 336.d. When considering the complaints of direct discrimination I would have regard to the statutory definition at section 13 EQA and consider whether the claimant’s sex was an effective cause of the treatment. H. Discussion and conclusion The Jurisdiction Issues[90]I have considered this in 2 parts: -a. The complaints raised in the first claimb. The complaints not raised in the first claim. Complaints raised in the first claim.[91]Applying rules 50 and 51 of the Rules I am bound to dismiss the complaints made against the first respondent, of constructive unfair dismissal, unpaid wages and unpaid holidays Complaints not raised in the first claim.[92]I have noted above, the rule in Henderson as explained in the (much) more recent decision in Gore. I note particularly the following extract “the bringing of a claim….in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim….should have been raised in the earlier proceedings if it was to be raised at all.”[93]All the complaints that were not raised in the First Claim could (and should) have been raised in that claim. The following is relevant: -a. That all complaints of harassment/discrimination/detriments were part of the claimant’s constructive dismissal complaint – they are all alleged events that, when considered cumulatively, amounted to a breach of the Implied Term.b. That the complaints of discrimination against R2 were added at a preliminary hearing in a case that should not have been brought (given the terms of Rule 50 and the Henderson/abuse of process rule).c. The terms by which the claimant communicated her withdrawal of the First claim are terms that indicate finality in the dispute.[94]Having regard to these relevant factors and the circumstances as a whole, I conclude that the issuing of the second claim does amount to abuse for the purposes of this rule. I have also considered an alternative approach (but not the preferred approach having regard to the extract from the Court of Appeal judgment quoted above) whether there are any special circumstances that should be taken in to account. I have decided that there are not. It was the claimant’s decision to write to the Tribunal to state that a settlement had been reached when she knew that no settlement had been finalised.[95]I have considered whether the term “the onus being on the party alleging abuse” means that I can (and should) ignore the Henderson/abuse of process rule. The respondent made no relevant representations at any stage of this litigation, even in closing submissions after they had been informed of the relevant law and my concerns.[96]I have decided I cannot ignore the effect of the Henderson/abuse of process rule. Parties often attend Employment Tribunal hearings without legal representation. An Employment Tribunal cannot and should not ignore important jurisdictional issues such as these, in circumstances where a party (often without legal representation) has not picked up on the issue.[97]I note for completeness (and as will be apparent from my findings of fact) that I would have concluded that the claimant had been constructively dismissed. I would also have made findings of harassment in relation to complaints H1 to H7. As for the complaint about the protected disclosure detriments, I would have concluded, from the evidence provided, that the claimant did not make a protected disclosure on 23 January 2024. The evidence provided gave no indication that the comments made by the claimant on 23 January 2024 were ones which she reasonably believed were in the public interest. Comments were made about the claimant’s concerns for the business and her own investment and employment.[98]However, for the reasons stated, all complaints fail on the application of Rule 51 and the Henderson/abuse of process rule. Approved by