Mr E Downard v Queen Margaret University: 8002402/2025
JUDGMENT
The judgment of the Employment Tribunal is that the claim is res judicata. The Tribunal accordingly has no jurisdiction to consider it, and the claim is dismissed.REASONS
[1]This was a preliminary hearing arranged to decide whether(1) the claim submitted to the Tribunal on 7 October 2025 in which the claimant complains of unfair dismissal and disability discrimination should be struck out or dismissed for lack of jurisdiction on the basis that it has already been brought, compromised and resolved with the assistance of ACAS by means of a COT3 agreement; and(2) the claim was presented outside the applicable time limits such that the Tribunal has no jurisdiction to hear it.[2]The claimant represented himself. Ms Jamieson represented the respondent. She had prepared a set of documents for the hearing, a copy of which had been provided to the claimant in advance. The claimant confirmed that there was no other documentation to which he wished to refer.[3]It was agreed that I would first hear submissions from Ms Jamieson. She would then provide a written outline of those submissions to me and to the claimant. Thereafter, there would be a short adjournment of 20 minutes to allow the claimant to consider the written submissions and the documents to which I had been referred. The claimant would then respond orally, following which Ms Jamieson would have a right of reply. Background The First ClaimBackground
[4]On 3 July 2017, the claimant submitted a claim to the Tribunal alleging disability discrimination and harassment against the respondent (case number 4102085/2017) (the First Claim).[5]The claimant was represented by Mr Deans, Solicitor. The respondent was represented by Ms Dunlop, Solicitor. In January 2018, the parties entered into settlement negotiations.[6]On 26 February 2018, the ACAS conciliator confirmed that agreement had been reached on the terms of a COT3.[7]On 5 and 6 March 2018, the parties agreed and signed a COT3 under which the claimant’s employment was terminated by mutual agreement on 28 February 2018. The claimant accepted a compensation payment in full and final settlement of the First Claim and of all other claims, whether known or unknown, which he had or might have against the respondent arising directly or indirectly out of his employment or its termination (the COT3).[8]Pursuant to the COT3, the claimant withdrew the First Claim, which was dismissed by the Tribunal in a judgment dated 13 March 2018. The Second Claim[9]On 21 December 2023, the claimant submitted a claim to the Tribunal alleging unfair dismissal and disability discrimination against the respondent (case number 8000665/2023) (the Second Claim).[10]In its grounds of resistance, the respondent contended that the Second Claim was barred by res judicata and, in any event, was out of time.[11]A preliminary hearing took place on 21 February 2024 before Employment Judge Hoey to determine whether the Second Claim should be struck out or dismissed for want of jurisdiction. At that hearing, Judge Hoey considered the COT3 and was satisfied that it encompassed the Second Claim. The claimant accepted that he was able to understand events in February 2018 when his employment ended. Although he could not recall precisely what had been said to him, he now understood the terms of the COT3 and that, if it had been entered into with his authority, the Tribunal would lack jurisdiction to consider the Second Claim. The claimant’s position was that he had not authorised Mr Deans to engage in discussions with ACAS or to settle claims arising on the termination of his employment. It was agreed that Judge Hoey would order Mr Deans to confirm in writing whether he had authority from the claimant to negotiate with ACAS and to settle the First Claim and discharge all claims arising out of the claimant’s employment and its termination, leading to the signing of the COT3 on 5 March 2018.[12]Mr Deans responded to that order by email dated 8 March 2023, setting out the key events relating to the settlement of the First Claim.[13]Following an exchange of correspondence in which the respondent solicitor’s set out the law of agency in Scotland and express, implied and ostensible authority, a further preliminary hearing took place on 15 May 2024 to determine whether, in light of the COT3 entered into on the claimant’s behalf, the Tribunal had jurisdiction to consider the Second Claim.[14]In the Note of the Preliminary Hearing dated 16 May 2024, Judge Hoey recorded that the claimant’s agent (Mr Deans) at the material time had discharged the claim now before the Tribunal (the Second Claim) and that the agent had the claimant’s authority, whether express, implied, or ostensible. As a consequence, the Tribunal had no discretion to consider a claim that had been discharged. Judge Hoey further noted that the claimant had considered matters and understood the law. The claimant withdrew the Second Claim.[15]On 17 May 2024, the Tribunal issued a judgment confirming that the Second Claim had been withdrawn and was accordingly dismissed. The Third Claim[16]On 16 November 2024, the claimant submitted a claim to the Tribunal alleging unfair dismissal and disability discrimination against the respondent (case number 8001898/2024) (the Third Claim). The Third Claim was very similar to, and substantially the same as, the Second Claim. The respondent applied for the Third Claim to be struck out on that basis.[17]On 18 December 2024, the Tribunal ordered that the Third Claim would be dismissed on 3 January 2025, on the basis that it appeared to have been settled by a COT3, unless the claimant made written submissions explaining why it should not be dismissed. The claimant made no representations. The Third Claim was dismissed on 7 January 2025 under rule 28 of the Employment Tribunal Rules of Procedure 2024 (the Rules). The Current Claim[18]On 7 October 2025, the claimant submitted a claim to the Tribunal alleging unfair dismissal and disability discrimination against the respondent (case number 8002402/2025) (the Current Claim). In substance, the Current Claim is the same as the earlier claims.[19]On 5 November 2025, Employment Judge Whitcombe issued a notice and order under rule 28 of the Rules, expressing the provisional view that the Current Claim disclosed no reasonable prospects of success. This was on the basis that it had been presented out of time and/or that the Current Claim, or an effectively identical claim, had already been brought and settled through ACAS and could not be re‑litigated. The claimant was invited to provide written reasons why the Current Claim should not be dismissed.[20]On 1 and 6 November 2025, the claimant submitted written representations to the Tribunal. In summary, he stated that he had been unwell in December 2025, in hospital in January 2025, discharged and again from February 2025 for a period of five to six months, which he said explained his failure to respond to Judge Hoey’s request for information in December 2024. The claimant also invited the Tribunal to order Mr Deans to provide specific information regarding the COT3:(1) when he informed the claimant by email of ACAS involvement; and(2) when he advised the claimant by email that any payment would be in full and final settlement of the claim.[21]On 17 November 2025, a preliminary hearing was listed to determine the Current Claim on the basis of res judicata and/or time bar.Deliberations
[22]Res judicata is a legal principle which provides that a matter which has been finally decided by a competent court or tribunal cannot be relitigated. Once a claim has been resolved, whether following a hearing, dismissal, or a binding settlement such as a COT3, the same parties are precluded from bringing the same cause of action, or a claim which is in substance the same, even if presented in different terms. Where the principle applies, the Tribunal has no jurisdiction to entertain the claim. It serves to secure finality in litigation, prevent inconsistent decisions, and protect parties from repeated proceedings arising out of the same factual matrix.[23]The respondent submitted that the Tribunal has no jurisdiction to hear the Current Claim, as it plainly relates to matters alleged to have occurred during the claimant’s employment and its termination. It therefore falls within the scope of the COT3. As previously determined by the Tribunal, the claimant waived employment‑related claims under that COT3 through a solicitor who had authority to act on his behalf.[24]The claimant’s position is that he did not give Mr Deans express or implied authority to enter into the COT3 with ACAS and that the agreement is therefore not binding upon him. He invited the Tribunal to put further questions to Mr Deans on this issue. The claimant explained that, due to ill health and hospitalisation, he had been unable to respond to the order made in the Third Claim.[25]I considered that the First Claim, which related to disability discrimination and harassment, was dismissed by the Tribunal on 13 March 2018.[26]The relevant statutory provisions governing the effect of a COT3 agreement on the Tribunal’s jurisdiction are contained in section 203(2)(e) of the Employment Rights Act 1996 and section 144(4)(a) of the Equality Act 2010. These provisions create exceptions to the general prohibition on contracting out of statutory employment rights.[27]The COT3 satisfied the statutory requirements of those exceptions. At the preliminary hearing on 15 May 2024, the issues raised about the COT3 were discussed. Judge Hoey concluded that Mr Deans had the claimant’s authority, even if the authority was not express, the authority was implied and ostensible. Mr Deans had discharged the Second Claim which included a claim of unfair dismissal. Consequently the Tribunal was prevented from considering the Second Claim. The claimant withdrew the claim and it was dismissed on 17 May 2024.[28]The Third Claim has also been dismissed. While I accept that the claimant was seriously unwell, which explains his failure to respond to the relevant order, there was no indication that any response would have gone beyond the matters raised again before this Tribunal. The Third Claim was dismissed on the same basis as the Second Claim.[29]I acknowledge that the claimant continues to have questions about the advice he received from Mr Deans in 2018. However for the reason previously explained and accepted by the claimant the Tribunal has no jurisdiction to entertain the claim of unfair dismissal and disability discrimination.[30]I am satisfied that the Current Claim is res judicata and that the Tribunal has no jurisdiction to consider it. The claim is dismissed.[31]In these circumstances, it has not been necessary to consider the issue of time bar.