Ms F Thorn v Nationwide Building Society: 6009172/2025 and 6009199/2025
EMPLOYMENT TRIBUNALS
Case No 6009172/2025, 6009199/2025, 1402955/2020
Between
Ms F ThornClaimantNationwide Building SocietyRespondent
Before
Employment Judge LiveseyMr P Michel (instructed by counsel) for respondentDate 20 March 2026
JUDGMENT
[1]The Claimant’s claims are both dismissed as an abuse of the process and/or because they have no reasonable prospects of success under rule 38 of the Employment Tribunal Procedure Rules.[2]The Claimant is ordered to pay the Respondent’s costs of the litigation under rule 74 (2)(a) and (b) in the sum of £6,694.80.
REASONS
[1]The hearing was conducted by the parties attending by video (CVP).[2]A bundle of documents was produced for the hearing, pages to which have been referred to in square brackets below. Mr Michel also produced written submissions on behalf of the Respondent. The relevant background[3]By a claim form presented on 11 June 2020 (‘Claim 1’; 1402955/2020), the Claimant brought complaints of discrimination on the grounds of race. In box 8.2 of the Form, in essence, she complained that she had initially been denied the opportunity of applying for a role that she had acted up in but, when she was allowed to apply, conditions were attached and she complained that she had been underscored. She was subsequently asked to take on additional work and, when she applied for another role, it was then withdrawn. She also complained of broader, institutionalised racism. At that stage, she was still employed by the Respondent as a Transition Consultant.[4]A further claim form was issued on 14 September 2020 (‘Claim 2’; 1404843/2020) in which the Claimant complained of further acts of race discrimination, together with acts of discrimination on the grounds of disability. The Particulars of Claim were professionally drafted by solicitors [44-53].[5]The matter came before Employment Judge Smail on 6 January 2021. He listed a further Preliminary Hearing to determine the issue of disability (stress and anxiety) on 9 December 2021 and a final hearing, over 10 days, to start on 7 February 2022.[6]The Claimant then withdrew her complaints of discrimination on the grounds of disability and they were dismissed by judgment dated 6 April 2021.[7]The Third claim (‘Claim 3’; 2405619/2021) was presented on 1 May 2021. It was subsequently withdrawn and on 25 February 2022 was dismissed upon that withdrawal.[8]On 13 December 2021, the Claimant issued a further claim (1404750/2021; ‘Claim 4’). That was a claim of unfair dismissal, failure to pay notice pay and discrimination on the grounds of race.[9]All three claims extant claims (Claims 1, 2 and 4) were heard by Employment Judge Bax and members over 12 days in January 2023. The Tribunal dismissed all claims of discrimination and victimisation but upheld the complaint of unfair dismissal [137-199]. It was important to note that the Claimant had conceded the existence of a redundancy situation and that the Respondent had conceded that her dismissal had been unfair (see paragraph hundred and 62 [174]). A separate remedy hearing was required.[10]The Claimant applied for reconsideration of that decision [200-7], but that was dismissed on 22 February 2023 [208-14]. She also appealed the decision to the EAT, but her appeal was lodged out of time [215-6] and was considered by HHJ Tayler to have been without merit (paragraph 11 of Mr Michel’s submissions). A rule 3 (10) hearing is now pending.[11]Meanwhile, on 8 February 2023, the Claimant issued a further claim of discrimination on the grounds of race (6000250/2023; ‘Claim 5’ [227-243]). It concerned an alleged ‘secret grievance investigation’ which had been conducted about her in around October 2020, but which she had only gained knowledge of during the hearing of Claims 1, 2 and 4. She alleged that members of her own team who she had accused of bullying had raised a grievance against her and she complained of six acts of detriment [242].[12]Following the filing of a response, the matter came before Employment Judge King on 14 July when he struck Claim 5 out as an abuse of process. The Claimant was also ordered to pay the Respondent’s costs of £14,542.40.[13]A further claim was then issued on 13 September 2023 (‘Claim 6’; 6001808/2023 [256-269]). That claim included a complaint of unfair dismissal, public interest disclosure detriment and/or dismissal and allegations of race discrimination. The Claimant asserted that, during the Tribunal hearings, the Respondent had ‘conducted itself in a manner that is not fitting for a high street bank’. That claim was also dismissed by Employment Judge Murdoch on 22 October 2024 as an abuse of process and a further costs sum was awarded against her (£13,406.30) [270-5].[14]Now to the current claims.[15]On 17 March 2025, the Claimant issued two further claims (‘Claims 7 & 8’; 6009172/2025 [277-290] and 6009199/2025 [291-304]). Only one ACAS Certificate was issued on 7 March [276], the Claimant having contacted ACAS on 13 February 2025. That meant that matters prior to 14 November 2024 were potentially out of time.[16]Claim 7 was discussed with Mr Downey and he agreed that it contained the following; - It was a complaint of public interest disclosure detriment only under s. 47B; - None of the disclosures that might have been relied upon was set out in the Claim Form; - As to the detriments contained complaints of public interest disclosure, they fell into the following categories; o Complaints in relation to the three claims that were heard by Employment Judge Bax and his Tribunal; that the Respondent had ‘refused to allow her a fair trial’, had ‘conspired with her counsel’ and had caused a 90% Polkey reduction to have been made; o Complaints in relation to the subsequent appeal in that the Respondent had opposed it more; o Complaints about matters before her dismissal including ‘defaming’ and causing ‘pre-dismissal discrimination’; o Repeated complaints of a failure to disclose documentation, which was specifically identified as race monitoring data which had been sought in her original claims back in 2022.[17]Claim 8 was also discussed in the same manner. That included the following; - A complaint of unfair dismissal under s. 103A and complaints of victimisation and public interest disclosure detriment under ss. 27 and 47B; - Again, no disclosures and/or protected acts were set out.[18]Upon receipt of the Responses in both cases, this hearing was listed to consider applications to strike out which had been advanced by the Respondent [320].[19]Meanwhile, on 16 October 2025, Employment Judge Bax finally listed the remedy hearing in the Claimant’s unfair dismissal complaint for two days, on the 11 and 12 June 2026 [322-337]. He also addressed and dismissed the Claimant’s applications to strike out the Response and to have the remedy hearing postponed until it could be tied up with Claims 7 and 8 [338-350].[20]On 22 December 2025, the Claimant applied to amend Claims 7 and 8 [352]. Three public interest disclosures were set out [355]; they had allegedly been made between 2019 and 2021. Despite the contents of paragraph 4 of the amendment [353], in which it was suggested that the application included nothing new, Mr Downey accepted that the first three of the five alleged detriments were new allegations and the first three, paragraph 8 (a) – (c), had all occurred before the Claimant’s dismissal in 2021. Strike out application
Legal principles
[21]Rule 38 permitted a Tribunal to strike out all or part of the claim if it was "scandalous or vexatious or has no reasonable prospect of success" (rule 38 (1)(a)). If proceedings were considered to have been an abuse of the Tribunal’s process, they were also liable to have been struck out under the rule.[22]It was an abuse of the process to attempt to re-litigate matters which had already been decided by a tribunal or another court of competent jurisdiction. Although that was one example of the application of the principle of estoppel (or res judicata), it was not the only one.[23]Cause of action estoppel prevented the re-litigation of a claim between the same parties which had already been determined. It was based upon the existence of a decision in the first action/issue; something which had been the subject of a judgment or decision. The principle was described by Lord Keith in Arnold-v-National Westminster Bank plc [1991] 2 A.C. 93 at 104DE as follows; “Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be re- opened.”[24]Although cause of action estoppel prevented a person from bringing a claim that raised a cause of action that was identical to that which had been previously determined, it did not, however, require that the evidence relied upon to advance the claims was identical. New evidence may have come to light, or there may have been a material change of circumstances, notwithstanding which the party could not re-litigate the same cause of action. As Lord Sumption held in Virgin Atlantic-v-Zodiac Seats Ltd [2014] AC 160, at paragraph 26; “Where the existence or nonexistence 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 re-litigation of identical claims.”[25]Issue estoppel generally acted to prevent a party from seeking to pursue a claim which was dependent upon the same facts which had been the subject of earlier litigation between those parties. For the earlier determination to bind the subsequent tribunal, it ought to have been a necessary ingredient to the cause of action in the previous proceedings (Arnold-v-Nat West Bank [1991] 2 AC 93, HL, following Thoday-v-Thoday [1964] P 181, CA), although that has had a fairly liberal interpretation in some of the subsequent decisions.[26]Thirdly, there was a wider form of issue estoppel (sometimes referred to as the rule in Henderson-v-Henderson (1843) 3 Hare 100 as explained in Johnson-v-Gore Wood [2002] 2 AC 1), which laid down the general principle that parties must bring forward their whole case, except in special circumstances, and would not ordinarily be permitted to bring fresh proceedings in respect of issues which could and should have been included in an earlier action; “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 earlier 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.”[27]When determining questions of that nature, the test in Moorjani & Ors-vDurban Estates Ltd [2019] EWHC 1229 (TCC) ought to have been applied: “17.4 Even if the cause of action is different, the second action may nevertheless be struck out as an abuse under the rule in Henderson v. Henderson where the claim in the second action should have been raised in the earlier proceedings if it was to be raised at all. In considering such an application: a) The onus is upon the applicant to establish abuse. b) The mere fact that the claimant could with reasonable diligence have taken the new point in the first action does not necessarily mean that the second action is abusive. c) The court is required to undertake a broad, merits-based assessment taking account of the public and private interests involved and all of the facts of the case. d) The court’s focus must be on whether, in all the circumstances, the claimant is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. e) The court will rarely find abuse unless the second action involves “unjust harassment” of the defendant.” Those principles echoed Lord Bingham’s approach in Johnson, above (at 22 C-F and 31 B-F).[28]The principle extended to matters that could and should have been included up to the date of the hearing, not just at the outset (LB of Haringey-v-O’Brien [2016] UKEAT/00004/16/LA).[29]There was also the broader merits based application of rule 38; a tribunal could strike a claim out if it appeared to have no reasonable prospect of success. In other words, that it was “bound to fail” (Twist DX-v-Armes UKEAT/0030/20/JOJ). It was a two-stage process; even if the test under the rules was met, a judge also had to be satisfied that his/her discretion ought to have been exercised in favour of applying such a sanction (HM Prison Service-v-Dolby [2003] IRLR 694).[30]Striking out a claim was a draconian step and numerous cases had reiterated the need to reserve such a step for the most clear and exceptional of cases (for example, Mbuisa-v-Cygnet Healthcare Ltd UKEAT/0119/18).[31]The importance of not striking out discrimination cases save in only the “most obvious and plainest cases” had been reinforced in a number of cases, particularly Anyanwu-v-South Bank Students Union [2001] UKHL 1764 and, more recently, in Xie-v-E’Quipe Japan Ltd [2024] EAT 176 in which the public interest in determining such cases at final hearings was reiterated. In Balls-v-Downham Market School [2011] IRLR, Lady Justice Smith made it clear that "no” in the old rule 37 meant "no”. It was a high test.[32]In Ezsias-v-North Glamorgan NHS Trust [2007] EWCA Civ 330 the Court of Appeal stated that it would only have been in exceptional cases that a claim might have been struck out under the rule where there was a dispute between the parties on the central facts. In such a case, the Claimant’s contentions must ordinarily have been be viewed at their highest. The approach, was considered in detail in Mecharov-v-Citibank [2016] ICR and Xie, above, as follows;(a) Only in the clearest case should a discrimination claim have been struck out;(b) Where there were core issues of fact that turned to any extent on oral evidence, they should not have been decided without hearing oral evidence;(c) The claimant's case must ordinarily have been taken at its highest, not only in relation to the facts, but the reasonable inferences that might have been drawn from them (Xie above);(d) If the claimant's case was "conclusively disproved by" or was "totally and inexplicably inconsistent" with undisputed contemporaneous documents, it may have been struck out;(e) A tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.[33]Discrimination claims were not however, immune from the possibility of being struck out under the rule. In such cases, it was not sufficient for a claimant to demonstrate that there was a difference in treatment and suggest that that alone could have been because of his protected characteristic (see Chandok-v-Tirkey [2015] ICR 527 at paragraph 20). The court in Igen-v-Wong [2005] EWCA Civ 142 expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could have concluded that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicated a possibility of discrimination. They were not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. Referring to the Court of Appeal's decision in Ezsias, the EAT (Langstaff P) in Romanowska-v-Aspirations Care Ltd UKEAT/0015/14 the EAT observed that: "Sometimes it may be obvious that, taking the facts at their highest in favour of the claimant, as they would have to be if no evidence were to be heard, the claim simply could not succeed on the legal basis on which it has been put forward." In Community Law Clinics Solicitors Ltd & Ors-vMethuen UKEAT/0024/11, it was stated that "the time and resources of the ET's ought not be taken up by having to hear evidence in cases that are bound to fail."[34]All of the available material had to be considered on such an application (see Balls above). Sometimes it may have been appropriate to resolve key factual dispute by hearing evidence even at a preliminary hearing (as in Eastman-v-Tesco Stores [2012] All ER (D) 264), but it would not ordinarily have been appropriate to do so (Kwele-Siakam-v-Co-Operative Group Ltd EAT 0039/17).
Discussion and conclusions
[35]The Respondent’s application was based upon two arguments;35.1 That the claims were an abuse in that they either had been raised before or could and/or should have been;35.2 They were substantially out of time, were an attempt to re-open Claims 1, 2 and 4 and lacked merit.[36]In consideration of those arguments, it was assumed that the Claimant’s amendment application would have been granted, although it was far from certain that that would have been the case.[37]As to the first argument (paragraph 35.1), Mr Downey stated that the only truly new claims were those under s. 47B and/or s. 103A. Why had they not been brought forward sooner? Mr Downey stated that, whilst the Claimant had well known that she had been a ‘whistleblower’, she had not understood that she could have advanced such claims as a litigant in person.[38]That did not appear to have been an accurate portrayal of the chronology since Claim 6 had clearly been a claim of unfair dismissal and/or detriment under ss. 47B and/or 103A. The detriments which had been claimed were those involving the Respondent’s handling of the litigation before Employment Judge Bax in Claims 1, 2 and 4. Accordingly, most of Claims 7 & 8 had been raised before, had been dismissed as an abuse and could not have been not be re-litigated again.[39]To the extent that they had not been, following Moorjani above, having considered all the circumstances of the case, I considered that the Claimant was misusing and/or abusing the process by trying to bring matters forward which could and should have been raised earlier. Those matters which did not concern the previous litigation directly, related back to the period of her employment, ending in 2021. The Respondent was being unjustly harassed by these proceedings. There was no good reason why the Claimant could not raise those matters sooner, if she had not, in fact, done so.[40]Even if I was wrong, what of the Respondent’s merits based arguments (paragraph 35.2 above)? The complaints relating to matters which had occurred during the Claimant’s employment were approximately four years out of time and those matters which had arisen more recently had nevertheless occurred before the end of 2023 when the litigation in Claims 1, 2 and 4 had been concluded and initially rejected by the EAT. They too were therefore substantially out of time.[41]Mr Michel was right to point out that many of the Claimant’s complaints were a direct attempt to reopen and/or appeal the Bax Tribunal’s decision and/or the EAT’s initial rejection of her appeal. As stand alone complaints of detriment, victimisation and/or discrimination, they were without merit.[42]Further and in any event, there was nothing within the Claims 7 and 8 and/or the proposed amendments to them which indicated a link between the Claimant’s race, her protected acts or disclosures (set out for the first time in the amendment document) and the detriments suffered, particularly the act of dismissal and particularly in light of the Claimant’s acceptance before the Bax Tribunal that it had been for the fair reason of redundancy.[43]Yet further, although not advanced by Mr Michel as an argument, many of the Claimant’s complaints concerned the Respondent’s attempts to defend itself within the claims that she had brought, either in the Tribunal (arguing for a Polkey reduction) or before the EAT (on the issue of time). It was always difficult for a claimant to allege that a respondent’s honest and reasonable attempt to defend itself in such circumstances constituted an act of detriment and/or discrimination (see Derbyshire-v-St Helens MBC [2007] ICR 841, HL).[44]For all of those reasons, the Claimant’s claims were an abuse of process and had no reasonable prospect of succeeding. Further, they were totally without merit for the same reasons. Costs[45]The Respondent had applied for its costs of the proceedings in the Response which had been filed to Claims 7 and 8. In a schedule submitted more recently, those costs were set out in the total sum of £6,694.80. General principles[46]Rule 74 (1) imposed a two-stage test: first, a tribunal had to ask itself whether a party's conduct had fallen within rule 74 (2); if so, it had to go on to ask itself whether it was appropriate to exercise its discretion in favour of awarding costs against that party. When the threshold requirements for an order for costs were met under rule 74 (1)(a) and/or (b) of the 2024 Tribunal Procedure Rules, it by no meant follows that, because it may have made a costs order, a tribunal would have done so. It had a discretion; “The discretion is very broad and it would require a clear error of principle to justify an appeal, whether for or against an order for costs.” (FDA and others-v-Bhardwaj [2022] EAT 97)[47]As the Court of Appeal reiterated in Yerrakalva-v-Barnsley Metropolitan Borough Council 2012 ICR 420, CA, costs in the employment tribunal were still the exception rather than the rule. It commented that the tribunal's power to order costs was more sparingly exercised and was more circumscribed than that of the ordinary courts, where the general rule was that costs followed the event and the unsuccessful litigant normally had to foot the legal bill for the litigation.[48]Under rule 74 (1)(a), I had to look globally at the totality of the “nature, gravity and effect” of the conduct: McPherson-v-BNP Paribas [2004] ICR 1398 CA; Barnsley Metropolitan Borough Council-v-Yerrakalva [2012] IRLR 78 CA. “Unreasonable” meant what it said; Dyer-v-Secretary of State for Employment EAT 183/73. It could have included the pursuit of an unmeritorious claim. In ET Marler Ltd-v-Robertson [1974] ICR 72 NIRC, the Court defined “vexatious” to include a situation in which “an employee brings a hopeless claim not with any expectation of recovering compensation out of spite to harass his employers and for some other improper motive.”[49]The second question which arose here was whether the complaints had had any reasonable prospect of success within the meaning of rule 74 (1)(b) at the outset. It was relevant, but not a prerequisite, that the Respondent had put the Claimant on notice that it may make an application for costs on the grounds that the claim had been misconceived. The essence of the test in rule 74 (1)(b) was neatly summarised in Millin-vCapsticks Solicitors [2014] UKEAT/0093/14; “Where a claim is truly misconceived and should have been appreciated in advance to be so, we see no special reason why the considerable expense to which a Respondent will needlessly have been put (or a claimant in a case within which a response is misconceived) should not be reimbursed in part or in whole" (paragraph 67).[50]Rule 74 (1)(b) used the same wording as rule 38 (1)(a). In the case of QDOS Consulting Ltd and others-v-Swanson UKEAT/0495/11 HHJ Serota QC indicated that the test of whether a claim had had no reasonable prospect of success was only met in "in the most obvious and plain cases in which there [was] no factual dispute and which the applicant [could have] clearly crossed the high threshold of showing that there [were] no reasonable prospects of success." Discussion and conclusions[51]Given the findings above that the Claims had been an abuse of process, had had no reasonable prospects of success and were totally without merit, it was not difficult to conclude that the threshold tests within rule 74 (2)(a) and (b) were met.[52]As to the exercise of my discretion, Mr Downey pointed out that the Claimant was a litigant in person and ought not to have been judged by the same standards that those who were professionally advised ought to have been. He was right, but that ignored the fact that these were Claims 7 and 8 and not her first venture. He further argued that she had received no warning as to the merits of her claims, yet the Judgments in Claims 5 and 6 ought to have given her some inkling as to how these claims might have been received. If there had been any doubt, the Respondent’s Response was in clear terms. She could have withdrawn her claims at that point. She pursued them to this hearing despite being doomed to failure.[53]It was appropriate for my discretion to have been exercised in the Respondent’s favour.[54]The Claimant provided evidence as to her means, which appeared markedly different from that recorded by Employment Judge Murdoch in November 2024 (see paragraph 31 [274]).[55]She told me that there were two properties of relevance in Manchester. She owned one, which was lived in by her son and he paid the mortgage. There was no liability and/or income for her. She rented and lived in a second property in Manchester. The rent was £1,550 pm, although she was due to surrender the lease in May and was looking for a bungalow in Devon at a lower rent (approximately £1,000 pm). She also owned a property in Wiltshire which was let at an income of £1,400 pm. She had a buy to let mortgage on that property of £600 pm, a net income of approximately £800 pm. She also owned a piece of land in Portugal which she was trying to sell. It was valued at approximately €100,000, but there was a mortgage on it of approximately €58,000. She was in receipt of benefits of approximately £360 pm.[56]As was stated by Employment Judge Murdoch in paragraph 32 of her Judgment [275], the Claimant simply could not continue to act in abuse of the process and avoid the financial consequences of doing so. She had assets, albeit that they had yet to be liquidated. She owned two properties and a significant asset in Portugal. She ought to pay the full value of the costs sum claimed.