Imrie v Right Track Scotland Ltd UKEATS/0016/20/SH

Appeal against the ET’s dismissal of the Appellant’s claims on the basis of res judicata. Appeal allowed.

In 2014, the Appellant brought claims in the ET against the Respondent alleging unfair dismissal, detriment for making a protected disclosure and disability discrimination. In 2015, he raised separate proceedings against the Respondent in the Court of Session, and the claims in the ET were sisted. The action in the Court of Session was settled extra-judicially and, in 2019, the Appellant revived his ET claims of constructive unfair dismissal, protected disclosure detriment, disability discrimination and automatically unfair dismissal. The ET dismissed the Appellant's claims on the basis of res judicata. The Appellant appealed on the ground that the ET had erred in concluding that the subject matter and media concludendi of the two actions were to any extent the same.

The EAT held that the ET had erred in law, by focusing almost entirely – and erroneously – on the issue of the remedies which might be available in each of the two cases, thereby failing to analyse properly and fully the issues of subject matter and media concludendi of the respective actions. Accordingly, none of the ET claims were barred by a plea of res judicata, the ET decision would be quashed, and the case would be remitted to a fresh ET. The EAT also observed that it was unacceptable that claims first presented to the ET in 2014 had not reached the stage of a merits hearing five years later, and that final responsibility for avoiding delay rests with the ET itself.

Published: 12/05/2021 15:14

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