Onea v Contingent and Future Technologies Ltd [2023] EAT 125

Appeal against the refusal to stay the ET proceedings until after High Court proceedings had concluded. Appeal allowed.

The Claimant was a co-founding employer of the Respondent and was a director and shareholder along with two others. The claimant resigned in October 2021 asserting constructive dismissal, there having been a breakdown of his trust and confidence in the Respondent. The following day, he was purportedly dismissed for gross misconduct. In January 2022, the Claimant commenced the ET proceedings. He claimed he had made protected disclosures and that in consequence he had been subject to specified detriments by the Respondent and he had been automatically unfairly dismissed. He also claimed for “ordinary” unfair dismissal and for wrongful dismissal, the latter on the basis that his employment had been terminated without notice. The unfair dismissal claim was advanced on the basis that he had been constructively dismissed on 11 October 2021 or that he had been summarily dismissed on 12 October 2021. There also High Court proceedings pending namely: (i) a breach of confidence action brought against him by his former employer, the Respondent; and (ii) an unfair prejudice petition he had filed against his two ex-colleagues and the Respondent. The Claimant applied to have the ET proceedings stayed until the High Court proceedings had concluded but the ET refused the application. The Claimant appealed.

The EAT allowed the appeal. The Employment Judge had failed to ask in which forum the dispute would be most conveniently and appropriately tried. Rather than weighing up all relevant factors and addressing this question, the ET had wrongly held that it was incumbent on the Claimant to meet a threshold criterion of showing “a very real risk of considerable embarrassment to the High Court”. In addition, the ET did not take into account a relevant consideration, as it failed to appreciate that there was a considerable degree of overlap between the ET claim and both of the High Court proceedings. The ET also erred in identifying as one of the reasons for declining the stay, that the application should have been made to the High Court, rather than to the ET, to resolve the question.

Published: 06/10/2023 14:17

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