Mr J Halley v Rt Hon Lord Carloway and Rt Hon Lord Pentland, the Lord President: 8002204/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8002204/2025, 8000275/2025

Venue Glasgow in chambers

Hearing 1 April 2026

Between

Mr J HalleyClaimant

Rt Hon Lord Carloway and Rt Hon Lord Pentland, the Lord PresidentRespondent

Before

Employment Judge E Mannion

Richard Pugh KC for respondent

Date 24 April 2026

JUDGMENT

The judgment of the tribunal is that the claim is res judicata and so the tribunal does not have jurisdiction to hear it.

REASONS

[1]This is a claim of disability discrimination and detriment and/or automatic unfair dismissal following the making of a protected disclosure.

[2]In their ET3 response, the respondents asserted that the tribunal does not have jurisdiction to hear this case due to res judicata, specifically in relation to case number 8000275/2025.

[3]In respondent to the question at part 3 of his ET1 “Are you aware that your claim is one of a number of claims against the same employer arising from the same or similar circumstances? If yes and you know the name of any other claimants add them here.” the claimant provided the following: Rt Hon Lord Carloway – case number: 800275/2025; Rt. Hon John Swinney MSP, the First Minister.

[4]A preliminary hearing on case management took place on 15 December 2025 wherein Judge Hoey listed an in chambers hearing to determine the following preliminary issue – is the claimant barred from proceeding with his claims through the operation of res judicata?

[5]A notice of hearing dated 30 December 2025 was sent to the parties confirming a hearing was scheduled to take place in chambers on 1 April 2026 and would deal with the question of res judicata.

[6]At the preliminary hearing on 15 December 2025 and in preparation for the hearing on res judicata the respondent was ordered to provide a draft statement of agreed facts to the claimant by 23 February 2026 for discussion and agreement, to be finalised by 2 March 2026 and provided to the tribunal 7 days before the hearing date.

[7]The parties were also ordered to exchange written submissions on res judicata on 2 March 2026 and provide final submissions to the tribunal no later than 23 March 2026.

[8]Parties were also ordered to finalise and agree a bundle of documents for this hearing by 2 March and provide this joint bundle to the tribunal 7 days before the hearing date.

[9]The respondent sent their written submissions to the tribunal on 23 March with an explanation that to date there had been no exchange of submissions from the claimant. The respondent submissions were sent to the claimant on 17 March, after agreeing to a later exchange date of 13 March at the claimant’s request which passed without exchange from the claimant.

[10]The respondent sent a bundle of documents and a draft statement of agreed facts to the tribunal on 27 March noting that these were sent to the claimant on 11 March and 23 February respectively for his comments and agreement. The claimant did not advise of any amendments to either the bundle or draft statement of agreed facts by the time these documents were sent to the tribunal on 27 March.

[11]On 17 March the claimant made an application for postponement of the hearing fixed for 1 April. This was refused by Judge Hoey on 25 March. The claimant was reminded to provide any comment or submission on the question of res judicata to the tribunal for the forthcoming hearing.

[12]As of 1 April, the tribunal had not received any written submissions from the claimant in respect of the preliminary point of res judicata. The decision set out below therefore considers the submissions of the respondent only. Findings in fact

[13]In the absence of any comments or proposed amendments from the claimant on the draft statement of agreed facts, the tribunal has adopted this statement of fact as follows:

[14]On 25 July 2019, the first respondent was the Lord President of the Court of Session, the most senior judge in Scotland. Section 2 of the Judiciary and Courts (Scotland) Act 2008 (“the 2008 Act”) provides for and specifies the responsibilities of the Lord President as Head of the Scottish Judiciary. The respondent has retired. He demitted office on 3 February 2025.

[15]The second respondent succeeded the first respondent, assuming the office of Lord President of the Court of Session on 3 February 2025.

[16]On 25 July 2019, the claimant was a part-time Sheriff, a judicial office holder. The claimant was appointed as a part-time Sheriff by the Scottish Ministers with effect from 21 June 2010. The claimant was reappointed for a further fiveyear period with effect from 21 June 2015. The claimant was reappointed for a yet further five-year period, with effect from 21 June 2020, in terms of section 9 of the Courts Reform (Scotland) Act 2014.

[17]The claimant is and was at all material times an Advocate at the Scottish bar. He was appointed as Lead Junior Counsel to the Scottish (then “Historical”) Child Abuse Inquiry (“SCAI”), established under the Inquiries Act 2005 (“the 2005 Act’) by Ministerial Determination in terms of s.39(1) of the 2005 Act in respect of the claimant dated 28 August 2015; and by letter of appointment dated 4 September 2015 specifying inter alia that the claimant’s appointment “will terminate” at the end of the Inquiry, in terms of s.14(1) of the 2005 Act.

[18]In May, June and July of 2019 the claimant made statements in relation to the conduct of Lady Smith, Chair of SCAI, towards the claimant when, and after, the claimant was diagnosed with cancer in October 2016.

[19]The claimant submitted an Employment Tribunal claim against Lady Smith on 23 July 2019. The claimant’s claim was served on Lady Smith on 25 July 2019. The claimant’s claim was for discrimination arising from disability, harassment and victimisation of the claimant by Lady Smith under EA 2010. At all material times since (at least) 10 October 2016 the claimant had, and has, the protected characteristic of disability within the meaning of section 6 and Schedule 1, paragraph 6(1) of EA 2010.

[20]By Minute of Suspension dated 25 July 2019 (document 8, page 173) the first respondent suspended the claimant from the office of part-time Sheriff. The suspension was imposed in terms of s.34(1) of the 2008 Act. The claimant was not given the opportunity to be heard before the decision to suspend.

[21]The first respondent accompanied the Minute of Suspension with a letter dated 25 July 2019 (document 6, pages 169 – 170) in which he attached an Appendix listing the various statements and tweets from the claimant (document 7, pages 171 - 172). A copy of the first respondent’s letter, with Appendix, is produced. The first respondent made no inquiry into the truth of the statements and tweets.

[22]The claimant responded to the first respondent’s letter by email at 13.28 on 30 July 2019, a copy of which is produced. The email was acknowledged by the first respondent’s office on the same day by email at 16.39. (The correspondence is at document 9, pages 174 – 176).

[23]The claimant withdrew his Employment Tribunal claim against Lady Smith in December 2019. The claimant asserts that he was illegitimately threatened by ET Judge Whitcombe with a finding of expenses of the whole action being made against him.

[24]The claimant’s name was removed from the publicly available online list of part-time Sheriffs on 20 September 2023. The claimant published a book on 30 August 2023. The title of the claimant’s book is “A Judicial Monstering: Child Sex Abuse Cover Up and Corruption in Scotland”. The claimant’s book was published by Amazon Global Publishing in the USA.

[25]The suspension remained in place pending the outcome of Fitness for Office Proceedings concerning the claimant.

[26]On 25 July 2024, the Fitness for Office Tribunal, constituted in terms of s.21 of the Courts reform (Scotland) Act 2014, found that the claimant was “unfit to hold office by reason of misbehaviour.” The Tribunal’s report is produced at document 11, pages 179 – 220.

[27]The report of the Fitness for Office Tribunal was sent to the First Minister prior to the first respondent demitting office.

[28]On 28 May 2025, the First Minister decided to remove the claimant from the judicial office of part-time Sheriff.

[29]On 24 January 2025, the claimant presented prescribed information to Acas in relation to claim 8000275/2025. Acas issued an Early Conciliation certificate on 29 January 2025.

[30]On 3 February 2025, the claimant submitted claim 8000275/2025 against the first respondent. The details of that claim are contained in the Papers Apart to both the claimant’s ET1 and first respondent’s ET3 forms (both of which are produced as document 12, pages 221 – 237 and document 13, pages 238 - 248).

[31]Following sundry procedure, claim 8000275/2005 proceeded to a hearing in chambers on two preliminary issues:(i) time bar; and

(ii) judicial immunity. In terms of a judgment dated 22 September 2025, the claim was struck out for lack of jurisdiction by reason of time bar. The judgment did not determine the issue of judicial immunity. A copy of the judgment is produced as document 15, pages 251 – 264.

[32]On 5 August 2025, the claimant presented prescribed information to Acas in relation to claim 8002204/2025. Acas issued an Early Conciliation Certificate on 11 August 2025.

[33]On 10 September 2025, the claimant submitted the present claim (number 8002204/2025) against the respondents.

[34]On 3 November 2025, the claimant intimated that he had lodged a Notice of Appeal in respect of the judgment of the tribunal in claim 8000275/2025.

[35]The following relevant facts are found from reviewing the documents in the bundle lodged by the respondents on 27 March.

[36]The claim submitted on 3 February 2025 as set out in paragraph 32 above was one of discrimination, namely victimisation under Section 27 of the Equality Act 2010 against the Rt Hon Lord Carloway. It was given the claim number 8000275/2025.

[37]In the paper apart to his ET1 under claim number 8000275/2025 the claimant asserted that he is disabled owing to bowel cancer. He asserted that by Minute of Suspension dated 25 July 2019 the claimant was suspended from the judicial office of part-time Sheriff. This suspension was an alleged act of victimisation under Section 27 of the Equality Act 2010 following the protected act whereby the claimant raised a discrimination action against Lady Smith in the Employment Tribunal. The claim asserted that the unlawful victimisation continued from 25 July 2019 to the respondent’s retirement on 3 February 2025.

[38]The respondent position as set out in their paper apart to the ET3 was that the claimant was suspended in terms of section 34(1) of the Judiciary and Courts (Scotland) Act 2008 on the basis that it was considered “necessary for the purpose of maintaining public confidence in the judiciary”. Reference was public statements made by the claimant on Twitter (now X) about Lady Smith which the respondent viewed as highly critical, derogatory and on the face of it defamatory as the reasoning for his decision to suspend.

[39]Further particulars of claim were lodged by the claimant on 15 August 2025 wherein he asserted that the statements he made in respect of Lady Smith were protected disclosures and he was subjected to detriment, namely summary suspension from judicial office, contrary to section 47B of the Employment Rights Act 1996 as a result of making these.

[40]The tribunal determined in their judgment of 22 September 2025 that they did not have jurisdiction to consider the claim as it was time barred. They found the alleged act of victimisation was not a continuing act but instead a single act of continuing consequence.

[41]The current claim is one of discrimination and detriment as a result of making a protected disclosure. It asserts as per paragraph 4 of the paper apart to the ET1 that the claimant’s removal from judicial office by the First Minister on 28 May 2025 was ‘one element in a single act of discrimination’ against the claimant and that “both the first and second respondents held (in succession) the office of Lord President from the date of purported suspension from office of the claimant on 25 July 2019 until the purported removal from office of the claimant on 28 May 2025. Both the first and second respondents thus contributed essential elements in a single continuing act of discrimination because of the enduring suspension and unlawful prosecution of disciplinary tribunal proceedings……both respondents participated in the unlawful and discriminatory suspension of the claimant from judicial office since 25 July 2019 and purportedly until 28 May 2025 because of the claimant’s acts and disclosures (which were inextricably related to the claimant’s protected characteristic of disability) which were and are protected by law”.

[42]Further at paragraph 5 of his paper apart to his ET1 he asserts “Separately, and in addition, the Respondents’ purported suspension of the Claimant from judicial office, and acts in furtherance of the prosecution of unlawful disciplinary proceedings, in these circumstances, constituted elements in a single continuing act of discrimination arising from the Claimant’s disability because of the Respondents’ reliance on reasons which were wholly connected with (because of) circumstances arising in consequence of the Claimant’s disability as prohibited by section 15(1)(a) of the Equality Act 2010 (“EA 2010”)”

[43]The respondents’ decision to suspend the claimant from office and the subsequent disciplinary proceedings are relied upon as an act of harassment contrary to Section 26 of the Equality Act 2010 at paragraph 6 of his paper apart. At paragraph 7 the suspension and disciplinary proceedings are relied upon again as an act of victimisation contrary to Section 27 of the Equality Act 2010. At paragraph 8, the claimant’s suspension from judicial office, the subsequent disciplinary proceedings and the removal of the claimant from judicial office are plead as a single continuing act of detriment contrary to Section 48 of the Employment Rights Act 1996.

[44]It is not in dispute that on or around 29 August 2019 the first respondent wrote to the then First Minister requesting that she constitute a tribunal to investigate and report on the claimant’s fitness for judicial office. Submissions

[45]The respondent provided written submissions which set out their position that the issues in the current claim 8002204/2025 were litigated in the earlier claim under case number 8002204/2025 or ought to have been included in that earlier claim but were not. Save for what is referred to below, I have not outlined this submission in its entirety, for the interests of brevity but I have taken this submission fully into account when coming to my decision.

[46]The respondent cited the following case law:a. Virgin Atlantic Airways Ltd v Zodiac Seats Ltd

[2013] UKSC 46

b. British Airways v Boyce 2001 SC 510

c. Smith v Sabre Insurance Co 2013 SC 569

d. McCluskey v Scott Wilson Scotland Ltd 2025 SC 15

e. Henderson v Henderson (1983) 3 Hare 100

[47]As outlined above, no written submissions were received from the claimant on or before 1 April 2026. Relevant law and Decision

[48]The law on res judicata in Scotland is relatively settled. The plea of res judicata provides that matters cannot be relitigated where they have already been determined or adjudicated. It has its roots in public policy, equity and common sense. It differs from the law on estoppel in England and Wales although the Scottish authorities have cited decisions from that jurisdiction and followed those authorities in part.

[49]Res Judicata was considered by the Scottish courts in British Airways v Boyce which concerned race discrimination claims raised before the Industrial Tribunal (as the Employment Tribunal was then). The claimant raised a claim under the Race Relations Act 1976 citing ethnic origins as the basis for the alleged discrimination and set out a narrative of events. The claim was dismissed and he raised a further claim on the same narrative citing national origins as the basis for the alleged discrimination. The Tribunal dismissed this second claim on the basis of res judicata and the matter made it’s way to the Inner House of the Court of Session for determination. The Court of Session in their considerations cited Divine-Bortey v Brent London Borough Council which looked at the rule in Henderson, one aspect of the English version of res judicata.

[50]The rule in Henderson comes from paragraph 115 of Henderson v Henderson where Sir James Wigram V-C stated “where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

[51]In considering the application of the rule in Henderson, the Court of Session found that the principal is encapsulated in the question “what was litigated and what was decided?”. When looking at the matter of media concludendi, they found that this covered “everything in the legislation, both in its legal and its factual aspects, which is pertinent to the act or acts of the employer made the subject of complaint.”

[52]The question of media concludendi was considered further by the Court of Session in Smith v Sabre Insurance Co. That case confirmed that the key question is what was litigated and what was decided and applied a “one action rule” in paragraph 26 “in other words a rule to the effect that all heads of damage, actual and apprehended, consequential upon one delictual act, must be sued for in one action and if that it not done, any omitted head of damage is held to be irrevocably departed from.”

[53]The Court of Session in Smith cited Lord President Hamilton in Aitchison v Glasgow City Council at paragraph 32. “It is accepted on all hands that as regards a claim for damages in respect of personal injuries, as of any other claim for damages, only one action can be pursued to decree. Thus, if an individual having sustained injuries through the fault of another sues the wrongdoer to decree (or settles with him), the obligation to make reparation is superseded (and extinguished) by the decree or the settlement agreement. He cannot sue a second or further time for damages in respect of injuries which subsequently emerge caused by the same wrong, even if he neither knew nor had the means of knowing at the time of his original claim of the likely or even possible emergence of these later injuries. That rule, which is a rule of practice, may seem in some circumstances harsh; but it is firmly established in our law. They determined that this one action rule is not confined to personal injury cases only, noting the inclusion of the words “as of any other claim for damages” and also “caused by the same wrong”.

[54]The question of media concludendi was considered further by the Court of Session in McCluskey v Scott Wilson Scotland Ltd where the Lord President Carloway found there were two questions to answer – is the action being litigated between the same parties? If so, does the issue proceed on substantially the same basis?

[55]If the parties are not the same in the subsequent action, this is not fatal to the question of res judicata. The term ‘same parties’ should not be strictly construed. What is important is whether the interests of the parties in the first and second action are the same. When looking at the question of what was litigated and what was decided, the court or tribunal should look at the essence of the matter.

[56]In considering what was litigated and what was decided, I found that the claimant’s first case, lodged on 3 February 2015 was against the respondent, the then Lord President Carloway. The case concerned the decision of the respondent to suspend the claimant on 25 July 2019 which was an alleged act of victimisation contrary to the Equality Act 2010 which resulted in damages, both pecuniary damages in that he could not continue to sit as a part-time Sherrif and damages for loss of standing and reputation. The case proceeded to a jurisdictional hearing on 15 and 16 September 2025 where it was found the tribunal did not have jurisdiction to hear the claim due to time bar.

[57]The second case, lodged on 10 September 2025 was against both Lord Carloway and Lord President Pentland as first and second respondent respectively. The case concerned the act of suspension on 25 July 2019 which was now pleaded as an act of victimisation, discrimination arising from disability, harassment, detriment and a breach of human rights. While the second case asserted that the decision to remove him from office taken on 28 May 2025 was an unlawful act and this was not included in the first claim, the claimant alleged at paragraph 4 that this removal was ‘a single continuing act of discrimination’ and that the respondents contributed ‘essential elements’ of that act of discrimination, namely the ‘enduring suspension’ which began on 25 July 2019 and continued until his removal and the ‘unlawful prosecution of disciplinary tribunal proceedings’. The decision to remove the claimant from his judicial office was not one taken by the respondents.

[58]The claimant sought damages on the same basis – loss of earning and loss of professional standing and reputation.

[59]The essence of the second case is the same as the first. It concerns the act of suspension and the actions which flowed from that – the disciplinary proceedings and removal from office. It is noted that the disciplinary proceedings did not feature in the first claim but I accepted the respondent’s submission on this point. I determined that in keeping with the rule in Henderson, this was something which properly belonged to the subject of the litigation in the first claim as it was a step taken by the first respondent after the claimant’s suspension.

[60]The decision to remove the claimant from judicial office in so far as the respondents were responsible was not plead in the first claim, likely as it occurred after the claim was raised. It was open to the claimant to amend his claim to include this. Indeed, that would be the normal process where there is an ongoing relationship between the parties and a claim is raised before a disciplinary outcome is reached to ensure that earlier acts of discrimination are not time barred. I again determined that given the manner in which this is plead in the second claim, that the ‘enduring suspension’ was an essential element of the unlawful act of his removal from office, that in keeping with the rule in Henderson and the one action rule as per Smith that this was something which properly belonged to the subject of the litigation in the first claim. The fact that the claimant failed to include it in the first claim does not provide a route to raise it a second time.

[61]In considering the interests of the parties, I determined these are the same in both claims. Lord Pentland is included in the second claim as he took up the office previously held by Lord Carloway. The suspension, which was initiated by Lord Carloway, continued under Lord Pentland.

[62]For the reasons set out above, I found that the plea of res judicata applied to the second claim and so the tribunal does not have jurisdiction to hear it. Date of judgment 24 April 2026