C Hunt v International Professional Resources Ltd: 8000634/2023

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000634/2023

Between

Christopher HuntClaimant

International Professional Resources LimitedRespondent

Before

Employment Judge A Macleod

Date 18 March 2024

JUDGMENT

The Judgment of the Employment Tribunal is that the claimant’s claim is dismissed on the grounds that it is res judicata.

REASONS

1 . The claimant presented a claim to the Employment Tribunal on 3 December 2023 in which he complained of disability discrimination against the respondent.

[2]The respondent submitted an ET3 response in which they resisted all claims made by the claimant. ETZ4(WR)

[3]A Preliminary Hearing was listed to take place on 31 January 2024 by Cloud Video Platform, in order to discuss case management in relation to these proceedings. However, the respondent’s agent wrote to the Tribunal on 16 January 2024, referring to the terms of the ET3, making application for that Hearing to be converted to an Open Preliminary Hearing in order to address certain preliminary issues arising in the case. That application was subsequently granted.

[4]The issue for determination at this Hearing was that of jurisdiction.

[5]The claimant appeared on his own behalf, and Ms Reid appeared for the respondent.

[6]Documents were presented to the Tribunal for its assistance and to which reference was made in the course of the Hearing. The Application

[7]The respondent observed that the claimant had previously raised claims of unfair dismissal, unlawful deductions from wages and race discrimination relating to his employment with the respondent under case no: 8000150/2022, which were dismissed by the Tribunal on the basis that they did not have jurisdiction over the claims relating to the claimant’s employment with the respondent. They referred to the Judgment in that claim dated 19 June 2023. They pointed out that in the current claim, the claimant was pursuing a claim of disability discrimination, relating to the same employment as the earlier claim.

[8]The claimant’s application for reconsideration of the earlier Judgment was refused, they said, and he did not appeal against the Judgment to the Employment Appeal Tribunal.

[9]The respondent’s application was therefore that in light of the Tribunal’s earlier finding that there was no jurisdiction to hear the earlier claim, this claim should be dismissed for the same reason. They observed that the earlier Tribunal Judgment determined that the claimant’s employment did not fall within the territorial jurisdiction of the Equality Act 2010.

[10]Ms Reid spoke to this application in the Hearing before me.

[11]She referred to paragraph 6 of the Note following Preliminary Hearing issued by Employment Judge Hendry on 30 January 2023 (124) in which the claimant was noted to have mentioned disability discrimination in his agenda, though not in his ET1, in the first claim. The claimant was cautioned by the Employment Judge that as this claim did not appear in the ET1, he would require to ask the Tribunal to amend to allow any such claim to proceed, which application would almost certainly be opposed. Ms Reid submitted that the claimant had elected not to apply to amend his claim on this basis.

[12]The Tribunal subsequently dismissed the claims for want of jurisdiction and struck them out as having no reasonable prospect of success under Rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013 (186).

[13]Ms Reid submitted that the claimant's claims should be struck out. The matter was res judicata, and it is not open to the Tribunal to reach a different conclusion on jurisdiction. Alternatively, the claims should be struck out on the basis of no reasonable prospect of success, or that they are vexatious.

[14]What was litigated and decided was that the Tribunal had no jurisdiction to hear the claimant’s original claim in relation to his employment with the respondent, and it is not open to this Tribunal to reach a different conclusion. She referred to the case of Richard Durkin v HSBC Bank Pic

[2016] CSIH 93

, and in particular to paragraph 11, wherein Lodge Hodge observed that a plea of res judicata depends upon a prior determination by a court of competent jurisdiction pronounced in foro contentioso; that the subject matter and media concludendi are the same; and that (other than in respect of decrees in rem) the parties are the same or representative of the same parties, or with the same interest.

[15]If the Tribunal did not support that submission, she submitted that the Tribunal lacks jurisdiction to hear this case based on the evidence led in the earlier claim, and that it would not be in accordance with the overriding objective of the Employment Tribunals Rules of Procedure 2013 to have a hearing on the same evidence.

[16]The Tribunal in the earlier claim made clear that the respondent’s submissions were well-founded, and therefore the claimant’s claim has no reasonable prospect of success. They also addressed the territorial scope of the relevant statutes, and concluded, on overwhelming evidence, that the factors pertaining to the United Kingdom were tenuous.

[17]While the claimant is unrepresented, she argued, he is well aware that his claim has no reasonable prospect of success, and this claim represents nothing more than an attempt to cause inconvenience to the respondent.

[18]The claimant responded. He said that the reason for his claim was that in the original claim, his focus was his employment terms with the respondent. This claim, he submitted, is in reference purely to the handling of his disability and the factors which went alongside that. He wishes to account for the indirect discrimination by returning him to work through a medical assessment, and failing to make reasonable adjustments to make his employment lawful and equal.

[19]He accepted that in the first claim, there was no complaint of disability discrimination, which he had meant to include. He remembered being told that if he wanted to make a claim of disability discrimination, he would need to apply to amend. He maintained that he had appealed that decision, and remembered being told numerous times that he had not done things correctly, despite regularly telling Employment Judge Hosie that he had done things to the best of his ability.

[20]With regard to the arguments about jurisdiction, he said that his claims related to work in the UK after he had arranged medical evacuation to the UK. His complete return to work was in the UK. The discriminatory action only took place in the UK.

[21]He submitted that the respondent has a “fixation” on jurisdiction. He interpreted what Employment Judge Hosie told him as meaning that it was possible to take his disability discrimination claim further. He said he was only raising this claim because of what the respondent had said to him, and how they had got away with it. He did say that he was willing to be told by a Judge that this case can go no further in a UK court. Discussion and Decision

[22]This claim arises out of unusual circumstances. The claimant raised proceedings against the respondent (notwithstanding some dispute on his part as to their true identity), which were dismissed for want of jurisdiction (and, at the same time, struck out on the grounds that they had no reasonable prospect of success.

[23]Was there a prior determination by a court of competent jurisdiction? In my judgment, there plainly was. The claimant’s earlier claim was dismissed, and struck out, on the grounds that the Tribunal lacked jurisdiction to hear the claim, and that there was no reasonable prospect of success. While there was no consideration of the merits of the case, that determination is, in my view, sufficient to engage with the principle of res judicata.

[24]Was that pronounced in foro contentioso? Again, this is straightforward. The determination was made by the Tribunal in litigation between the claimant and the respondent. ,25. Were the subject matter and media concludendi the same in the previous litigation? The subject matter determined by the Tribunal related to the jurisdiction of the Tribunal to hear the claims made by the claimant. There was a difference in the claims made, in that this claim relates only to disability discrimination, whereas the previous claims related to unfair dismissal, race discrimination and unlawful deductions from wages. The media concludendi, or points of controversy between the parties, are the same, in that in this case, and in this Hearing, the Tribunal has required to hear arguments about whether or not the Tribunal has jurisdiction to hear the claims due to issues of territorial scope.

[26]Finally, the parties are the same in this case as in the previous claim.

[27]Accordingly, it is my conclusion that the claim made by the claimant should be dismissed, on the basis that the issue of jurisdiction, relating to the claimant’s employment with the respondent, has already been adjudicated upon by the Tribunal, in Employment Judge Hosie’s Judgment. To allow this claim to continue would be to lead inevitably to a consideration of the same jurisdictional issue, and that matter has already been judicially determined, and not effectively challenged or overturned.

[28]The claimant’s claim is therefore dismissed on the grounds of res judicata.