Parker v Northumbrian Water UKEAT/0221/10/CEA

Appeal against refusal to allow an application for a review of a judgment in which the claimant was refused permission to amend his ET1 to include claims that he suffered detriment as a result of having made protected disclosures. Appeal dismissed on issue estoppel but allowed on the abuse of process point.

Appeal No. UKEAT/0221/10/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 October 2010

Judgment handed down on 30 March 2011

Before

HIS HONOUR JUDGE HAND QC (SITTING ALONE)

MR J PARKER (APPELLANT)

NORTHUMBRIAN WATER (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR JAMES MEDHURST (Representative) Free Representation Unit

For the Respondent MR DANIEL NORTHALL (of Counsel)

Instructed by: Messrs DLA Piper UK LLP Solicitors Bridgewater House 101 Barbirolli Square Manchester M2 3DL

**SUMMARY**

PRACTICE AND PROCEDURE – Estoppel or abuse of process/Amendment

The appeal was dismissed on issue estoppel. Issue estoppel applied not to the declarations made by the first Employment Tribunal, as apparently decided in the Pre Hearing Review judgment, but to the breach of contract issues that had been decided at that first hearing as stated in the Refusal to Review decision, which must be regarded as forming part of the decision under appeal.

The appeal was allowed on Henderson v Henderson abuse of process. The Employment Judge had misdirected himself by failing to consider the approach identified by Lord Bingham in Johnson v Gore Wood [2002] 1 A.C. 1 *at 31A-F. [Mr PJ Foster v Bon Groundwork]() Ltd [2011] UKEAT/0382/10/SM, which emphasises the importance of that approach, was also considered. From now on Employment Tribunals should consider the issue of Henderson abuse of process from the perspective identified by Lord Bingham in the House of Lords in Johnson v Gore Wood and not from that of the Court of Appeal in Divine-Borty v Brent London Borough Council* [1998] ICR 886. Whilst the same result would be reached in many cases irrespective as to whether one or other approach was adopted, that was by no means an inevitable outcome in all cases and the instant appeal was an example of that. Having all the necessary material the Employment Appeal Tribunal was able to conclude that there was no abuse of process and grant permission for the amendments

The appeal was also allowed on the collateral attack abuse of process decision made by the Refusal to Review decision. Parliament has provided by section 43B(1)(c) of the Employment Rights Act 1996 that if there is a reasonable belief that a miscarriage of justice has occurred then any disclosure about it may qualify for protection and the Employment Tribunal erred by failing to differentiate between that cause of action and a collateral attack abuse of process. Having all the necessary material the Employment Appeal Tribunal was able to conclude that there was no abuse of process and grant permission for the amendments.

**HIS HONOUR JUDGE HAND QC****Introduction**

1 The context of this appeal is litigation dating back to events in 2004 but this appeal is from the Judgment of an Employment Tribunal, comprising Regional Employment Judge Lamb, conducting a Pre Hearing Review ("PHR") at Stratford on 11 September 2009. The judgment was sent to the parties on 21 January 2010 under a certificate of correction dated the previous day. It replaced an earlier judgment dated 9 October 2009. The Appellant, Mr Parker, applied for a review on 15 October 2009 but his application was refused by a written decision also dated 21 January 2010.

**The issues**

2 The issues to be decided by the Employment Tribunal at the PHR were identified by paragraph 1 at pages 1 and 2 of the hearing bundle as follows:

i) the extent to which the Appellant could rely in the current proceedings on any complaint made before 3 May 2007;

ii) whether the Appellant needed permission to, or should be permitted to, amend his ET1 form to add a claim that his resignation, which he was claiming amounted to constructive and unfair dismissal, had been by reason of a fundamental breach of contract on the part of his employer by failure to comply with the Public Interest Disclosure Act 1998;

iii) whether the Appellant needed permission to, or should be permitted to, amend his ET1 form to add a claim or claims that he had suffered detriment because he had made a protected disclosure;

iv) whether, in any event, the Employment Tribunal had jurisdiction to entertain any claim in respect of public interest disclosure detriments; in turn, this involved consideration as to whether the Appellant had complied with the requirements of the statutory grievance procedures laid down by the Employment Act 2002.

There was a fifth issue, which arose during the course of the hearing, namely whether a claim for disability discrimination could be added. This appeal has not been concerned with that issue.

3 In the corrected judgment Regional Employment Judge Lamb decided that:

i) The Appellant was bound by the declarations made by the Ferris (first) Tribunal;

ii) the rule in Henderson operated so as to preclude the Appellant from basing a claim on any factual matter, which had arisen at any time before the Employment Tribunal hearing in March 2007;

iii) permission to amend by adding a claim or claims that he had suffered detriment because he had made protected public interest disclosures should be refused because such a claim would be out of time and caught by the rule in Henderson but

iv) permission would be given to amend by adding a claim that he had been dismissed because he had made public interest disclosures;

v) permission to amend by adding a claim of disability discrimination would be refused.

As will be explained below, that picture is complicated by the reasons for refusing a review given on the same day by the learned judge.

4 Pursuant to an Order of this Tribunal made by His Honour Judge McMullen QC on 16 March 2010 there is a "Single Notice of Appeal". It has been drafted by the Appellant and runs to some 13 pages. But, as is made clear by a letter of 10 August 2010 from the Free Representation Unit, which, then and since, has represented the Appellant (see page 154 of the hearing bundle), of the six issues raised by the Notice of Appeal only two are now pursued. These are:

i) the issue estoppel/Henderson abuse of process point (formerly issue 2 but subsuming the argument (formerly issue 1) that because of a failure to provide particulars of the estoppel/breach of process argument, the Respondent should not have been allowed to pursue it);

ii) whether the Employment Tribunal erred by not giving permission to amend so as to pursue the claim that the Appellant had suffered detriment because he had made protected public interest disclosures (formerly issue 3).

Also subsumed within these are the human rights points (formerly issue 6), which are said to be "pervasive throughout the whole appeal" (see page 154 of the hearing bundle) and which can be summarised by saying that the Appellant has been denied a fair hearing in breach of Article 6.

**Factual background**

5 In November 2004 various changes were made to the way in which the Respondent, then Essex and Suffolk Water, treated hours not worked on days (usually Bank Holidays) when an employee had been rostered to work ("the banked hours scheme"). Although he had signed a Statement of Terms and Conditions of Employment, the Appellant argued that he had never given his individual consent to those changes; he said he had signed the Statement under duress.

6 On New Year's Day 2006 and the following day the Appellant was told not to come to work. Had he worked, he would have been paid triple time. Under the banked hours scheme he was obliged to work those hours on another day; he duly did so but was not paid triple time in respect of those worked hours. His complaints about this resulted in "the First Claim", which is discussed below.

7 In 2005 the Respondent alleged that the changes had been incorporated into a collective agreement and were binding on the Appellant, whether or not he had consented to them on an individual basis. In December 2007, following correspondence with the Respondent, the Appellant resigned with effect from 29 February 2008; on 8 January 2008 he received a letter from the Respondent terminating his employment with immediate effect, although that appears to be disputed. The termination, however it took effect, led to "the Second Claim", which is the subject of this appeal.

**The First Claim**

8 The ET1 form relative to this claim appears at pages 198-207 of the hearing bundle but without any means of ascertaining its date, although it seems most likely to have been submitted in early 2006 and it was allocated Case Number 320142/2006. It is couched as an unpaid wages claim for £400.95p (gross).

9 The pertinent parts of paragraph 8.3 of the form at pages 203 and 206 read as follows:

"My terms and conditions state my normal hours of work to include working the 31/12/05, 01/014/06 & 02/01/06 on an 8 am - 4pm shift. These are my contracted hour's 37 hours per week on a shift rota. I declared myself fit to work these days but the company told me not to work. I did not work the bank holiday weekend as my Union Shop Steward had been told by my line manager if I did come to work that I would not be paid.

...

The above costs are based on what I would have been paid if I came into work as contracted. As the 1/1/06 and the 2/1/06 were Bank Holidays by contract I should have been paid an additional double time for each day i.e 32 hours x £12.5296/hour = £400.95

This dispute has arisen because the company does not believe I have the right to mutually agree which days I am stood down (bank hours). The company is currently in dispute with employees over imposed shift arrangements (without agreement) as the new shift arrangement conflict with the collective agreement on Terms and Conditions. It's my belief that the Company is behaving unlawfully and unreasonably over this new shift arrangements. My written Statement of Terms and Conditions of Employment states that my duties on a field shift are as agreed and I believe that includes the duty of being stood down."

10 Paragraph 10 of the form gives the Claimant an opportunity to "add any extra information you want us to know" and the Appellant said this at pages 204 and 207 of the bundle:

"On 1/10/2004 the Company implemented a new shift arrangement "on a twelve month trial basis" letter sent to Hanningfield shift Controllers dated 1/9/2004.

During the same period the company were harmonising Terms and Conditions which resulted with collective agreement (signed by company and Unions) effective from the 1/7/05.

No subsequent letters had been received since this date to extend the trial period. It's my belief that the trial period therefore ended on 30/09/2005.

There are no collective agreements on this new shift arrangement (banked hours). The new shift arrangements conflict with the collective harmonised agreement on Terms and Conditions and previous conditions.

Upon implementation the Hanningfield shift controllers raised a group grievance (Oct 2004) over imposing the new shift arrangements without agreement. They had not been involved in the early consultation on the key principles and they considered the new arrangements to be considerably worst (sic) off from the previous shift pattern both financially and work/home life balance. Eventually a final hearing was heard on the 24/5/2005 and the Director's rulings 22/08/05, confirmed that there had not been adequate consultation. The Director directed another manager to review the key principles and to agree a shift working arrangement for a Banked hour's system of work. A meeting was held on 7/10/05. The Southern Production director was directed to review the shift pattern, no meeting has yet been held.

The union replied on the 27/09/05 with the employee's response as there were several points, which they felt, were based upon misinformation. The final company response was received on the 21/12/05 with no change.

I have no dispute with the new harmonised agreement on Terms and Conditions I would just like to work to those agreements. The company do not seem to what (sic) to hear grievances within the procedure or in a timely maner (sic)."

11 By July 2006 it seems that the Appellant was seeking to amend the ET1 and on 12 July 2006 Mr Chairman Scannell directed a Case Management Discussion ("CMD") warning:

"It seems to him, prima facie, that the Claimant is seeking to disguise a breach of contract case, or a claim for declarations of the terms of a contract, as a wages claim, which he cannot do in a Tribunal. The projected amendments cause even more concern.

… If this is really a breach of contract claim or a claim seeking a declaration of the true terms of a contract, it might be an abuse of process to seek to disguise it as a wages claim. Wages claims are meant to be simple actions which can be dealt with by a Chairman alone in a matter of an hour or two."

12 The CMD took place on 12 December 2006. As a result (the decision is at pages 167-170 of the hearing bundle) the First Claim was agreed to relate to a claim for a declaration of the written particulars of the Appellant's terms and conditions of employment pursuant to Part 1 (i.e. sections 1 to 11) of the Employment Rights Act 1996 ("the ERA") and the issues to be decided were defined as being:

i) if the Appellant worked banked hours on what would otherwise be a rest day would he be entitled to be paid double time?

ii) was the Appellant entitled to be paid at time and a half for working Saturdays and double time for working Sundays on a normal shift rota ?

iii) what impact did the banked hours scheme have on holiday entitlement?

13 In order to answer those questions the learned Employment Judge decided the Employment Tribunal would have to determine the following:

i) what were the contractual terms when the Appellant signed the Statement of Terms and Conditions in November 2004?

ii) were those terms subsequently varied lawfully?

iii) what declaration should be made?

14 The first claim was heard on 9 March 2007 with deliberations on 3 May 2007, the written judgment being sent out to the parties the same day. The Employment Tribunal made the following declarations pursuant to sections 1 to 11 of the ERA:

i) if the Appellant worked banked hours on what would otherwise be a rest day he would not be entitled to be paid double time (unless, as the Respondent conceded, that rest day was a Bank Holiday);

ii) the Appellant was not entitled to be paid at overtime rates for working Saturdays and Sundays on a normal rota but if he worked overtime on a day designated on the rota as rest day then he would be entitled to overtime pay at the appropriate rate;

iii) the Respondent was not entitled to make any deductions from holiday pay entitlement if hours were banked and the Appellant was not subsequently required to work them.

15 The last declaration was made by agreement, its substance having been conceded by the Respondent in writing before the hearing. The other declarations were arrived after evidence and legal argument were heard. At paragraphs 9 to 17 of the judgment the Employment Tribunal set out extracts from Statement of Terms and Conditions, which the Appellant had signed on 4 November 2004 and from the Employment Conditions Manual, which was referred to at paragraph 2 of the Statement of Terms and Conditions. Having done so the Employment Tribunal reached this conclusion at paragraph 18 (see page 175 of the hearing bundle):

"In our judgment the document signed on 4 November 2004 (together with the Employment Conditions Manual) set down the written particulars of the Claimant's contract of employment as it was at that date."

and at paragraph 19 the Tribunal said this:

"We find that the Claimant's contract of employment permitted the Respondent to bank hours for which the Claimant and other workers were rostered to work, which in the event they did not work. The details of the "banking" system are not made clear by this contractual documentation however, and we had to hear further evidence before we could reach conclusions about how the system worked (and what were the employer's rights in relation to the banking of hours)."

16 The Tribunal then went on to consider whether there had been any changes to the contract after November 2004. It found that by May 2005 the trade unions and the Respondent had agreed the terms under which a Joint Business Negotiation Committee would function, that it had then put forward harmonisation proposals, which had been balloted in a work place ballot and been accepted by a majority of those voting and, as a result, there had been a change in the terms and conditions.

17 At paragraph 27 the doctrine of the incorporation of collective agreements into individual contracts of employment was considered and the Employment Tribunal reminded itself that the process of introduction of such terms might amount to a breach of the mutual obligation of trust and confidence by, for instance, inadequate notice or impossibility of performance. At paragraph 28 they rejected the contention advanced by the Appellant that the process involved a breach of contract:

"In our judgment the exercise carried out by the Respondent (with the agreement of the Trade Unions, including the GMB, the Claimant's own union, and a majority of balloted workers) was not in breach of the implied term of trust and confidence, and it did result in a lawful change to the Claimant's terms and conditions of employment. Thus (and since 1 July 2005 the day when the change was put into effect, post ballot) the Claimant has been entitled to double time for working on a rest day only if the rest day is a Sunday or a Bank Holiday, and he has received a modestly enhanced rate of basic pay in return for the change."

18 Finally, at paragraph 29 the Employment Tribunal found that the banked hours scheme was of longstanding and of contractual effect.

19 The Appellant was dissatisfied with this outcome and appealed to this Tribunal. In a judgment handed down on 22 May 2008 a division of this Tribunal comprising the President, Elias J, Mrs Baelz and Ms Taplow dismissed his appeal. Because the reasoning of the Employment Appeal Tribunal is not relevant to the arguments in this appeal I see no reason to add to the length of this judgment by analysing it.

**The Second Claim**

20 As I have already said the Appellant's employment terminated in early 2008. He submitted a second ET1 form; it is at pages 37 to 47 of the hearing bundle; it is not possible from the documents to deduce exactly when it was lodged.

21 At page 45 as part of section 5.1 there appears a long passage, which starts with these words:

"This case dates back to 1 October 2004 when the Respondent unilaterally changed the Claimant's terms and conditions of employment and introduced a new shift system known as banked hours."

22 Later on the same page the following appears:

"The Respondent failed to follow its own agreement process for introducing banked hours. Having failed to reach agreement through the proper agreed staff council process they chose to unilaterally to implement it (sic) on the 1 October 2004. The claimant and his peers made their objections to the system known by raising a grievance immediately. The company ignored this."

23 The following passage is at page 46:

"At no time has the Respondent agreed any terms for the banked hours systems. All negotiation has failed they have never conceded on any of the shift workers concerns of poor health/life balance and pay. The banked hours systems has (sic) been applied capriciously and irrationally with the claimants workgroup and across the company. Management have even changed minutes of meetings to the detriment of the claimant."

24 On the same page his claims are described thus:

"The claimant has had breaches in his contract of employment unlawful deductions of wages suffered detriment while trying to pursue his statutory rights

This claim covers unlawful deductions from wages s13 ERA.

This claim is for unfair dismissal under s95c ERA it is an unfair dismissal as the Claimant had been trying, in good faith, to exert his statutory rights s104 ERA. This was made clear to the employer.

The claim is also automatically unfair, as the employer has failed to investigate the Claimant's grievance in accordance with the time period specified in s32 of the Employment Act 2002."

25 Finally at page 47 he adds this:

"The conduct of the employer was to seriously damage the relationship of confidence and trust between the employer and the employees."

26 A great deal more documentation and detail followed but in essence it is those passages that have led to this appeal. The Respondent contended that issue estoppel arose in relation to the contractual issues, which had been decided in the first claim with the result that the matter came before Regional Employment Judge Lamb at a Pre Hearing Review (PHR) on 11 September 2009.

27 By then the Appellant was also seeking permission for 5 "detriments suffered as a result of making disclosure" to be considered. They are set out at paragraph 11 of the decision on the refusal to review (discussed below) as follows:

"(1) Dismissal for making protective disclosures;

(2) Being paid 5 percent less than peers for doing exactly the same work 1 October 2004 to 31 July 2005;

(3) Suffering psychiatric illness 10-08-06 until 4-10-06;

(4) Suffering psychiatric illness 5-7-07 until 23-9-07;

(5) Suffering psychiatric illness following EAT hearing and judgment miscarriage of justice and manner in which the Respondent misled the EAT."

**The PHR Judgment**

28 I have already summarised the outcome of that hearing at paragraph 3 above but I need to say something about its reasoning. Paragraphs 13 to 20 comprise a digest of the decision of the Court of Appeal in Divine-Borty v Brent London Borough Council [1998] ICR 886 and reach the conclusion that there existed no special circumstances for not applying "issue estoppel in the wider sense: the sense that ordinarily precludes a person from bringing fresh proceedings in respect of a matter which could and should have been litigated in earlier proceedings" (see paragraph 14 of the judgment at page 5 of the hearing bundle).

29 Both reasoning and conclusion are encapsulated in paragraphs 18 to 20, which read:

"18. Having regard to that statement of the philosophy underlying the rule of estoppel, and having regard to the very restrictive interpretation of what constitutes special circumstances, I am unable to accept Mr Parker's contention that his complaints about the injustice of the original proceedings can constitute special circumstances in the current proceedings. This is a case which was fully considered by the Employment Appeal Tribunal, and indeed one chaired by the President himself. Even accepting Mr Parker's argument that the rules of procedure prevented him from putting forward his whole case about the injustice of the original proceedings, I do not see how that would entitle him to reiterate those arguments in these further proceedings. This may appear to be a harsh outcome, but it is no more harsh than the outcome was for Mr Divine-Borty.

19. I therefore conclude that Mr Parker is bound by the declarations which were made by the Employment Tribunal chaired by Mr Ferris, and upheld by the Employment Appeal Tribunal.

20. Applying the rule in Henderson, I further conclude that the Respondents are correct in their argument that Mr Parker cannot be allowed to put forward an argument which he could have put forward in the original proceedings."

30 Regional Employment Judge Lamb accepted the Respondent's analysis that the claim comprised allegations of automatically unfair dismissal, unfair dismissal for asserting a statutory right, unlawful deduction from wages, breach of contract, and a claim for a redundancy payment. That being so, Judge Lamb thought the question then arose as to whether the Appellant could amend so as to add complaints of detriment by reason of public interest disclosure or dismissal because public interest disclosures had been made. The Judge said this at paragraphs 29 and on pages 8 and 9 of the hearing bundle:

"... Reading the original claim form, the impression gained by the reader is of generalised complaints about the injustice of the enforcement of the terms and conditions to which Mr Parker objected. The way in which I would categorise the extent and nature of the amendment is that it has some basis in the original allegations, but on the other hand, it is far from being simply a change of label for facts which are already pleaded. Indeed, in his various documents submitted to the Tribunal prior to the case management discussion in July and subsequently, Mr Parker has added very substantially to his allegations.

30. Insofar as Mr Parker is alleging that he was subjected to detriment on the grounds of making protected disclosures, those complaints are obviously well outside the applicable time limit of three months from the date of the act complained of, unless I exercise my discretion to extend time on the grounds that it is just and equitable to do so. By contrast, his complaint of being dismissed for the inadmissible and unlawful reason of making protected disclosures is clearly within time. However, the further objection to the detriment's complaint is that these are all matters which predated the first claim, and therefore to allow them now to be added by way of the amendment would be contrary to the rule in Henderson. Since I have already determined that there are no relevant special circumstances to justify not applying that rule, it follows that I cannot grant that amendment. That, however, is not a consideration which applies to the issue of amending the claim so as to add a complaint related to the dismissal."

That reasoning is developed and expanded in paragraph 38:

"In my judgment the application in respect of detriments must be refused, because it would result in a complaint which is out of time. However, the same cannot be said of the amendment related to the reason for dismissal. The limits to be imposed upon the amendment in respect of a complaint that the dismissal was for a reason of making public interest disclosures are as follows: the disclosures relied upon cannot relate to or correspond to any of the matters which were determined in the previous proceedings, nor can they relate to anything which happened prior to the reserved judgement of the Tribunal chaired by Mr Ferris, because those were all matters which could and should have been pursued in the previous proceedings, on the principles enunciated in the Divine-Borty case. However, subject to those limitations, it seems to me just to allow Mr Parker to argue that if he was dismissed, the dismissal was for this additional reason. He had already, it is accepted, alleged the assertion a (sic) statutory rights; and in his claim form, he alleged bullying by management. Whilst there is a degree of prejudice to the Respondents by allowing this additional complaint to be considered, it is a relatively limited expansion of the claim as it presently stands. I accept that with additional research, Mr Parker could have made the complaint expressly clear at an earlier date, but I equally accept that that (sic) was the previous proceedings were continued, up to and including the appeal, he was very much taken up by the issues in the case; and after the current claim was presented, all the early correspondence concentrates on the application of the estoppel arguments."

**The Refusal to Review**

31 I must also mention the review decision sent to the parties on 21 January 2010. This ranges over a number of issues, not all of which are pertinent to this appeal but it seems to me that one is and therefore I must set out some of the reasoning relative to it. At paragraph 9 (see page 110 of the hearing bundle) Judge Lamb accepted that the Employment Tribunal chaired by Mr Ferris did not have jurisdiction to consider a breach of contract claim.

32 His own characterisation of that First Claim was that it had been a complaint of unpaid wages but he agreed (at paragraph 9):

" … that the Ferris Tribunal did not have jurisdiction to consider a contract claim, because the relevant employment had not ended … However, the Claimant remains bound by the findings of the Ferris Tribunal relevant to those issues before it. His entitlement to any of the claimed sums is to be determined within those limits."

33 At paragraphs 10 to 16 Regional Employment Judge Lamb reconsiders his conclusion that the protected public interest disclosure detriments claim was out of time. He said at paragraph 15:

"I further accept that the detriment relied upon as illness between 5 July 2007 and 23 September 2007 fell after the date of the judgment in the previous case … I now accept that it cannot be stated with as much certainty as I did in my judgment the detriments complaints are all out of time. I cannot exclude the possibility the Claimant may have an argument based upon continuing act or omission, or a series of acts or omissions."

At paragraph 16 he accepts that there was compliance with the necessary statutory procedures.

34 But at paragraph 17 he refused the proposed amendment on another basis:

"The basis upon which I would now refuse the amendment and therefore refuse the application for review of my decision is as follows. Paragraph 8 of the letter of 15 October firmly places the protected interest disclosure complaint on the grounds of an allegation of miscarriage of justice by misleading the Employment Tribunal and the Employment Appeal Tribunal by the Respondent. It raises the question: is the Claimant entitled to make that allegation and should an amendment be allowed to enable him to do so? My answer to that question is negative. In my opinion it is manifestly unjust and wrong in principle to allow such a further attack on the previous proceedings. I have already noted in my judgment the relevant history of those proceedings. The Claimant fully exhausted his remedies. The outcome having been that the Appeal Tribunal upheld the original decision must rule out any allegation now being made that the proceedings were a miscarriage of justice. It must constitute a substantial injustice and prejudice to allow to the Respondents to allow a Claimant to amend so as to revive his attack on the merits of the previous decision. It far outweighs the prejudice to the Claimant constituted by the refusal of the amendment, given that he had an opportunity to ventilate in those previous proceedings his various complaints."

**The Submissions - Appellant**

35 Mr Medhurst started his argument by an analysis of the nature of the First Claim. It had started life as an unlawful deductions claim but had been transformed into a Part 1 Claim about the Statement of Terms and Conditions. Consideration of the summary of the judgment in paragraphs (i), (ii) and (iii) (at internal pages 1 and 2; pages 171 to 172 of the hearing bundle) and paragraphs 27 and 28 of the Reasons (at internal pages 6 and 7; pages 176 to 177 of the hearing bundle; see also above at paragraph 16 of this judgment) led to the conclusion that what the Employment Tribunal considered to be at issue was the incorporation of a collective agreement into individual terms and conditions. It also had to be accepted by the Appellant that the issue of whether the incorporation relied had been lawfully implemented had been under discussion, at least to some extent.

36 But context is everything, submitted Mr Medhurst, and this second claim was for unlawful deductions not covered by the first claim; as the Schedule at page 57 of the hearing bundle makes clear the unlawful deductions claim raised in the second proceedings related to Bank Holiday pay and it does not depend on findings made by the Ferris Tribunal in the First Claim.

37 The second issue raised by Mr Medhurst relates to the circumstances in which the Appellant came to sign the counterpart of the Statement of Terms and Conditions in November 2004. What has never been decided, submitted Mr Medhurst, was the issue as to whether that signature had been improperly procured by the threat that failure to sign would result in a pay cut.

38 Issue estoppel can only apply to issues, which have been decided, and because this was an issue, which might affect the mutual implied term as to trust and confidence, something clearly within the scope of the constructive dismissal allegation now raised in the second claim, it was now necessary for it to be decided. It could not have been decided in the first claim because there had then been no termination of employment and both the Respondent's argument and the terms in which it appears to have been accepted by paragraphs 19 and 20 of the PHR judgment (see page 6 of the hearing bundle and above at paragraph 20 of this judgment) draw the scope of exclusion far too wide

39 In the context of the proposed amendment to add causes of action based on public interest disclosure related detriment and public interest disclosure related dismissal, Mr Medhurst pointed out that the same factual matrix applied to both and yet only the latter amendment had been allowed. Given that one amendment had been allowed the discretion to extend time in the other ought to have been exercised in favour of the Appellant and, by parity of reasoning, no species of estoppel should be applied to these claims; they were so closely related to the cause of action, which Regional Employment Judge Lamb had reasoned at paragraph 38 of the judgment (see page 10 of the hearing bundle and above at paragraph 28 of this judgment) should not be the subject of any bar raised by estoppel or abuse of process.

40 Mr Medhurst's fourth point related to the refusal to review the PHR judgment. The imperfections of the procedure adopted by Regional Employment Judge Lamb of issuing a refusal to review decision and, at the same, issuing a corrected judgment under a certificate of correction gave rise to more than an undesirable and untidy mechanism. If the learned Judge had allowed the review and reviewed the case, as Mr Medhurst submitted he should have done, then a review judgment could have been given on the points now accepted in order to complement the PHR judgment and would make clear how the conclusions reached in that judgment had been altered by the outcome of the review.

41 As it was, the corrected judgment and the refusal to review judgment had to be read together but the unhappy result was that they were inconsistent and did not complement each other. The corrected version of the PHR judgment still decided that the proposed amendment to add causes of action based on public interest disclosure related detriment was refused because those claims were out of time (see paragraphs 30 and 38 of the PHR judgment and see above at paragraph 28 of this judgment). By contrast paragraph 15 of the reasons for refusing the review accepts that these claims may not have been out of time and paragraph 16 accepts that there was compliance with the necessary statutory procedures (see page 111 of the hearing bundle and also see above at paragraph 31 of this judgment).

42 Then at paragraph 17 (see page 112 of the hearing bundle and see above at paragraph 32 of this judgment) the learned Judge gives a reason for refusing the amendment, which appears to be that to allow the point to be pursued, would amount to a collateral attack on the judgment of the Ferris Tribunal and that of this Tribunal. Whilst this may be a first cousin of the species of estoppel under discussion in the PHR judgment, it is a distinct genus of the Hunter v Chief Constable of the West Midlands Police and Others [1982] A.C. 529 variety.

43 So the corrected PHR judgment must be read as subject to and qualified by the refusal to review reasons. Piecing matters together in this way it can be seen that the only extant objection to the proposed amendment is that articulated by paragraph 17 of the refusal to review judgment and, submitted Mr Medhurst, that cannot stand up to scrutiny because the proposed claim is not a collateral attack on the judgment of the Ferris Tribunal or of the Employment Appeal Tribunal.

44 Whilst it is correct to say that the protected disclosure alleged in this connection is that lies were told on behalf of the Respondent at the Employment Tribunal and at the Employment Appeal Tribunal (although that may have been no more than the repetition of the same lies) that does not amount to a collateral attack on those decisions. This is because what is at issue in protected disclosure is not the truth of the allegation. Section 43B(1) of the Employment Rights Act 1996 is concerned with "the reasonable belief of the worker making the disclosure" that the "disclosure of information which … tends to show … (c) that a miscarriage of justice has occurred, is occurring or is likely to occur". Parliament must be taken to have considered the extent to which such a belief might constitute a collateral attack on a decision already taken when enacting the section and have been satisfied that provided the belief was reasonable, it could constitute a protected disclosure. It is, after all, inherent in the rubric of section 43B(1)(c) that the belief will relate to the incorrectness of an existing judgment.

45 Furthermore Judge Lamb did not differentiate between issue estoppel, Henderson abuse of process and collateral attack abuse of process. The issues relating to each were not homogeneous but Judge Lamb had conflated them and he had never analysed whether the proceedings could and should have been brought earlier and whether it is an abuse to allow them to be brought now, which would be the approach suggested by Johnson v Gore Wood [2002] 1 A.C. 1. Instead, encouraged by the Respondent, he had simply set the date of the Ferris Tribunal (March 2007) as the cut off point. But that kind of guillotine says nothing about either abuse or prejudice. It does not address whether a claim could or should have been made by then and whether or not it was an abuse to try to make it later. Also it ignores some practical considerations such as whether, if the disclosures are to be considered in relation to dismissal it can really be said to be an abuse to also consider whether detriments were suffered. There was no consideration as to how substantial an addition that might be or how much it might add to the costs or how much it might prejudice the Respondent if the matter were aired? Mr Medhurst's answer to his own questions was – not to any significant extent.

46 Finally, on the question of disposal Mr Medhurst submitted that the matter should not be remitted; this was an unclear and inadequately reasoned judgment and I had all the necessary material to reach a conclusion.

**The Submissions - Respondent**

47 Mr Northall's first submission was that to some extent the matter was being argued by Mr Medhurst in a way not open to him on the Notice of Appeal. The "Bank Holiday issue", as identified by Mr Medhurst as the basis for his argument on this point, found no expression at all either in the way the matter had been put in the pleadings and hearings leading up to the PHR or in the way it had been argued at the PHR or in the Notice of Appeal. The only source for it identified by Mr Medhurst was the spreadsheet at page 57 of the hearing bundle and Mr Northall submitted nobody could have appreciated by simple scrutiny of the document that any such claim was being made. In any event, even if the point was open, it must still proceed from arguments as to the correct construction of the contract of employment and that had all been litigated in the First Claim and was, therefore, precluded by issue estoppel.

48 Secondly, the Appellant's case rested on a misapprehension as to what has been excluded by the PHR judgment. The learned Judge accepted the Respondent's case as set out at paragraph 12 of the judgment (see pages 4 and 5 of the hearing bundle); that means no claim can be based on those matters. It does not mean those matters cannot be referred to in evidence as part of the relevant background to the alleged constructive dismissal nor can they be excluded as part of the narrative if the constructive dismissal is put on a "last straw" basis.

49 Thirdly, and looking at the matter more broadly, the approach of Regional Employment Judge Lamb was entirely consistent with the approach of the House of Lords in Johnson v Gore Wood, in particular per Lord Bingham at 30H-31F, even though Judge Lamb had not referred to the case and had based himself on the earlier Court of Appeal decision in Divine-Borty. Moreover, even though Lord Bingham was inclined to ask whether the conduct was an abuse in all the circumstances rather than asking whether the conduct was an abuse and, if it was, whether there were any special circumstances, which might excuse it, Lord Bingham had acknowledged that in many cases the result might be the same, irrespective as to whether one adopted his preferred approach or the special circumstances approach. The instant case was an example of this and so Judge Lamb's special circumstances approach (see paragraph 18 of the PHR judgment at page 6 of the hearing bundle) was not erroneous.

50 Nor need more be said, he submitted, about the relationship between the PHR judgment and the reasons for refusal of the review than that the latter clearly represented a change of position from that taken by Judge Lamb in the former on the question as to why permission to amend to add a cause of action or causes of action based on public interest disclosure related detriment should be refused. The learned Judge had clearly changed his mind but there was nothing wrong with that so long as the reasoning process was fully comprehensible, which, despite it being contained in two rather self contradictory documents, it was.

51 Fourthly, the proposed amendment was substantial. Regional Employment Judge Lamb was quite right to say this was not re-labelling (see paragraph 29 at page 8 of the bundle and also see paragraph 28 of this judgment) and the question as to whether or not an amendment should be allowed or refused is always a matter of discretion or, as Regional Employment Judge Lamb said (albeit in the context of the proposed disability discrimination amendment) at paragraph 30 of the refusal to review decision (see page 114 of the hearing bundle) "a case management decision". Moreover, the discretion is broad and there was no basis for suggesting that it had not been properly exercised. Judge Lamb had clearly taken account of the suggested miscarriage of justice and had also been entitled to take into account that the Appellant had been allowed to pursue his public interest disclosure related dismissal claim. The proposed amendments as set out at paragraph 11 of the refusal to review decision quite clearly fell into different categories; in the result paragraph (1) had been allowed but the others rejected and no error of law could arise from that exercise of discretion.

52 Finally, on the question of disposal, Mr Northall submitted that if the appeal was not dismissed the just, convenient and most economic disposal would be for the matter to be remitted to Regional Employment Judge Lamb for further consideration.

**Discussion**

53 The various issues have been resolved in a somewhat episodic way by Regional Employment Judge Lamb in a combination of the PHR judgment, the refusal to review decision and the corrected PHR judgment. Although I have no doubt that the method adopted by the learned Judge was dictated by a desire to progress the case as quickly as possible, it is somewhat unfortunate that it has been necessary for me to piece together what now constitutes the judgment of the Employment Tribunal on estoppel and abuse of process from different sources and somewhat ironic that a desire for progress has been frustrated by the fact that I have had to take considerable time in deciding what really is the judgment on estoppel and abuse of process.

54 The Respondent submitted at the PHR that there was an issue estoppel, which operated so as to prevent the Appellant from pursuing any claim based on or relating to these 5 matters (see paragraph 12 of the PHR judgment; what follows is my summary):

(1) interpretation of the terms and conditions documentation;

(2) non-applicability of the terms of any collective agreement;

(3) the unlawfulness of the "banked hours" scheme;

(4) the harmonisation of the terms and conditions;

(5) alleged breach of the implied term as to trust and confidence referable to the "banked hours scheme" or the harmonisation exercise.

It was also submitted that Henderson abuse of process precluded reliance on any matters that had arisen by the time of the hearing of the First Claim in March 2007. Moreover the Respondent opposed the proposed detriment amendments summarised at paragraph 27 above on the same basis and also on the basis that some were out of time.

55 Estoppel and abuse of process are each important doctrines with great relevance to case management. In terms of individual litigants, once an issue has been settled in litigation, in broad terms, it is unjust to allow it to be raised again. In terms of the court/tribunal system, there must be an end to litigation, otherwise the system could be clogged by the repetition of claims. So preventing reiteration is important. But there is a danger of matters becoming tangled in arguments as to what is repetition and what is not and what constitutes an abuse and what does not. The instant appeal is an example of the difficulty.

56 So what has been decided? In any consideration of issue estoppel, Henderson abuse of process or collateral attack abuse of process, the starting point must be the first/previous decision. At paragraph 19 of the PHR judgment it is said:

" … Mr Parker is bound by the declarations which were made by the Employment Tribunal chaired by Mr Ferris, and upheld by the Employment Appeal Tribunal."

This apparently remains unaltered by the terms of the refusal to review decision. It seems to me, however, that, after taking into account the refusal to review decision, when looked at in the round, this cannot be what has been decided.

57 As explained above (see paragraphs 8, 9 and 10 of this judgment) the First Claim started life as an unlawful deductions claim under part 2 of the ERA. Mr Chairman Scannell then drew attention to the limitations of an unlawful deductions claim in terms of what the Appellant wished to have decided (see paragraph 11 above) and as a result of subsequent case management and, as I understand it, with the agreement of the Appellant, the First Claim was transformed into an application for a declaration pursuant to Part 1 of the ERA.

58 But an application for a declaration pursuant to Part 1 of the ERA, has its own limitations, some, but not all, in common with those of the limitations identified by Mr Chairman Scannell in respect of an unlawful deductions claim, and I am not sure these were recognised in the subsequent case management of the First Claim, or at the hearing of the First Claim, although they received some recognition in the review decision (see below). As has recently been made reaffirmed by the Court of Appeal in [Southern Cross Healthcare Co Ltd v Perkins and others]() [2010] EWCA Civ 1442, in Part 1 declaration cases the statute confers jurisdiction on an Employment Tribunal to declare what the contract is but it confers no jurisdiction to declare what the contract means. In other words identifying the terms of the contract of employment will be a necessary part of deciding what particulars should have been included or referred to in any statement of terms and conditions made in purported compliance with the requirements of Part 1 of the ERA but it seems to me doubtful that construing their meaning and effect and declaring what the practical result would be in any particular factual circumstances is within the ambit of Part 1 of the ERA.

59 Whether or not the declarations made in the First Claim by the Ferris Tribunal can be said to go beyond the jurisdiction of the employment tribunal under Part 1 of the ERA has not formed any part of the argument before me nor before Regional Employment Judge Lamb at the PHR although in paragraph 10 of his judgment (see page 4 of the hearing bundle) there is a reference to:

"A further contention made by Mr Parker … that the judgment of the original Employment Tribunal went further than was necessary to the determination of the issues before it. It was in part "obiter" Mr Parker's word, not mine."

60 Whether at that stage a lack of jurisdiction was being addressed is open to question (the terms of paragraph 9 of the PHR judgment may provide some basis for thinking that it might have been); the decision refers to the judgment having gone further than necessary and then says no more about it. But something akin to it seems to have been the basis of paragraph 4 of the letter of 15 October from Mr Parker seeking a review. I have already quoted paragraph 9 of the refusal to review decision at paragraph 32 above but repetition at this point may be helpful:

"… the Ferris Tribunal did not have jurisdiction to consider a contract claim, because the relevant employment had not ended … However, the Claimant remains bound by the findings of the Ferris Tribunal relevant to those issues before it. His entitlement to any of the claimed sums is to be determined within those limits."

61 What does that all amount to in terms of estoppel? The Respondent had submitted at the PHR that there was an issue estoppel, which operated so as to prevent the Appellant from pursuing any claim based on or relating to the five matters referred to at paragraph 54 above and it seems to me that paragraph 9 of the refusal to review decision (and not the conclusion in 19 of the PHR judgment that there was an estoppel in relation to the declarations made by the Ferris Tribunal) must be taken to represent the judgment of the Employment Tribunal on issue estoppel. Putting it broadly, that judgment is the Appellant cannot re-litigate the breach of contract arguments, which he had advanced before the Ferris Tribunal (and, for that matter, before this Tribunal on appeal against the Ferris judgment). If, in stating the proposition set out in the previous sentence, I have correctly expressed what I might describe as the mean average of the judgment of Regional Employment Judge Lamb on issue estoppel, I regard that proposition, and therefore his judgment on issue estoppel, as being correct in law. If I have not correctly constructed his judgment out of my amalgamation of the corrected PHR judgment and the refusal to review decision, in my judgment, the foregoing expresses the correct position in law and, in so far as the decision of Regional Judge Lamb states something different, which I have endeavoured to demonstrate I do not believe it does, it is based on an error of law and my analysis should be substituted for it.

62 Consequently, it seems to me that an unlawful deductions from wages claim is not precluded from consideration by the Employment Tribunal by issue estoppel; such a claim was not in issue before the Ferris Tribunal. But what is precluded, by issue estoppel, is any argument that such a deduction was unlawful by reference to paragraphs (1) to (4) as set out at paragraph 54 above. I have some hesitation as to a complete exclusion in relation to paragraph (5) and, as I understood his submissions, so does Mr Northall. I understood him to accept that the conduct of the Respondent with respect to the introduction of the banked hours scheme and its subsequent operation might be referred to in evidence as part of the relevant background to the alleged constructive dismissal and could not be excluded as part of the narrative if the constructive dismissal is put on a "last straw" basis.

63 In my judgment that is the correct approach. The first judgment estops the Appellant from saying that there was a breach of contract in the period 2004 to 2006 but it cannot prevent him from saying that either the Respondent's conduct in relation to the banked hours scheme or the approach to implementation of it, or both, were matters that should be weighed in the balance when deciding whether the resignation amounted to a dismissal. Moreover, it seems to me that precisely the same considerations apply to the alleged dismissal by reason of having made protected disclosures, which Regional Employment Judge was prepared to allow by way of amendment to the ET1.

64 The second, overlapping concept considered by Regional Employment Judge Lamb was Henderson abuse of process. At paragraph 20 of the PHR decision he said:

"Applying the rule in Henderson, I further conclude that the Respondents are correct in their argument that Mr Parker cannot be allowed to put forward an argument which he could have put forward in the original proceedings."

65 A very great deal has been written about the true basis of the judgment of the Vice Chancellor, Sir James Wigram, in Henderson v Henderson (1843) 3 Hare 100 but whether it was at its inception no more than an example of cause of action estoppel or not, it is now to be equated with abuse of process. This was recognised by Lord Bingham in Johnson v Gore Wood [2002] 2 AC 1 at 31A-F:

"But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be vexed twice in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging the abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice."

66 If the learned Regional Employment Judge had this passage in mind, his judgment suffers from the deficit that he does not make clear what the "broad merits" might have been in the instant case. Rather, in the terms in which it is couched, paragraph 20 of the PHR judgment, cited above, suggests that the material is being excluded because it could have been raised at the time and was not. As will be appreciated from the passage of Lord Bingham's judgment that may be the beginning of consideration of abuse of process but it is not the end of it and there is no real discussion as to why any claim should have been raised at an earlier time as opposed to the fact that it could have been.

67 Moreover, there is no discussion as to what "it" actually was. Issue estoppel clearly applied to whether or not the Respondent had acted in breach of contract by introducing and implementing the "banked hours scheme" and, therefore, it seems safe to infer that the abuse of process related to public interest disclosure related detriment and to the unlawful deductions from wages claim.

68 The former has been excluded at different times on two different abuse of process related grounds, as well as being judged to be out of time at one point. The latter has been cut off by a guillotine falling in March 2007 but the judgment does not explain why it makes any sense to do that. The Employment Tribunal would still have to consider claims arising after that cut off point; it is difficult to see what significant saving there would be in terms of time or expense to exclude the earlier deductions from consideration. Also, although Judge Lamb recited the history of the proceedings, including the CMD, which resulted in the case being transformed into a Part 1 claim, it seems to me no weight has been given to that as a factor explaining why earlier deductions were not included in the proceedings. In simple terms they would not need to be if the principle upon which such matters was to be decided was (I think probably erroneously) being made (by direction and by agreement) the sole subject matter of the extant proceedings.

69 In my judgment Henderson abuse of process has been applied in far too rigid a way and Lord Bingham's approach, as set out above, of a merits based analysis has not been followed. I cannot accept Mr Northall's submission that Judge Lamb must have had Johnson v Gore Wood in mind and, even if he did not, in any event his judgment is consistent with it. No doubt Lord Bingham was as prescient as always when he observed that the result may often be the same whether one looks at the matter from the point of view of an "in all the circumstances broad merits based" consideration or whether one starts from the point of view of the situation being an abuse of process but then asking if special circumstances mean that exceptionally the proceedings can continue. In my judgment, however, it cannot be said with any confidence that the result would be the same in this case and I think that this case illustrates the dangers of starting from the premise that if the claims could have been advanced at an earlier time, then it would be an abuse of process to allow then to be pursued now if "special circumstances" could not be established. Regional Employment Judge Lamb thought that there were no special circumstances and at paragraph 18 of the PHR judgment he said:

"Even accepting Mr Parker's argument that the rules of procedure prevented him from putting forward his whole case about the injustice of the original proceedings, I do not see how that would entitle him to reiterate those arguments in these further proceedings. This may appear to be a harsh outcome, but it is no more harsh than the outcome was for Mr Divine-Borty."

70 I take a contrary view. If case management results in the case taking a certain form, that seems to me to be something which ought to be considered not in terms of exceptional circumstances but in terms of whether it would be an abuse or oppressive to let the matter be aired in second proceedings. Nor do I think the right approach is to compare the outcome in one abuse case with the outcome in the case under consideration, as the last sentence above suggests is a way of testing the conclusion. Each case is likely to be unique in terms of potential abuse or oppression. From now on I think Employment Tribunals would be well advised to consider the issue of Henderson abuse of process from the perspective identified by Lord Bingham in the House of Lords in Johnson v Gore Wood and not from that of the Divine-Borty case.

71 Since composing the first draft of this judgment the decision of a division of this Tribunal presided over by Silber J in the case of Mr P J Foster v Bon Groundwork Ltd [2011] UKEAT/0382/10/SM has been handed down. The whole of the judgment commands attention but for present purposes it suffices to say that Silber J also emphasised the need for a "broad, merits based judgment" in respect of abuse of process arguments (see in particular paragraphs 52 and 53 at pages 17 and 18 of the judgment).

72 In my judgment a "broad, merits based" approach should take account of:

i) the fact that the first case was placed in the context of Part 1 of the ERA as a result of case management decisions;

ii) Mr Parker's agreement with that cannot place the primary responsibility on him; it was still the result of the case management decisions whether he agreed to it or not;

iii) once it resided in Part 1 instead of Part 2 it is unrealistic to complain that complaints about deductions were not brought forward at that time;

iv) there is also an air of unreality about excluding a detriments claim based on the alleged suffering of psychiatric illness from 10 August 2006 until 4 October 2006 or on the alleged payment of 5% less for two years but allowing evidence of either to be led in the context of either the original constructive dismissal claim made in the second proceedings or the protected public interest disclosure dismissal claim, which has been permitted to be added to the second claim by way of amendment; I accept this is a familiar situation in some discrimination cases where there are a series of discontinuous acts, the earlier of which are out of time and, therefore can only relied upon evidentially, but the detriments alleged may not be out of time in this case;

v) the nature of the alleged detriment (psychiatric illness) is clearly part of the circumstances.

73 In my judgment Regional Employment Judge Lamb did not give consideration to these circumstances. He simply adopted the approach of the Court of Appeal in Divine-Borty and established a cut-off point. He then asked what special circumstances had been established by Mr Parker. That was too narrow and too rigid an approach and was erroneous in law. I accept Mr Medhurst's submission that I have all the material needed to reach a conclusion on this matter. Having regard to the circumstances referred to above I conclude that it is not abusive for the deductions from wages claims and the detriment claim based on illness in the Autumn of 2006 to now form part of the second claim. The qualification that has to be made, however, is that both the deductions from wages claims and the detriment claims will be subject to the restrictions of the issue estoppel discussed above, although of the four proposed detriment amendments the one most likely to raise such considerations is that based on the alleged detriment of being paid 5% less than colleagues for 2 years; the others seem much less likely candidates..

74 I turn now to the other two proposed detriment amendments, which the refusal review to decision accepts cannot be ruled out because of Henderson abuse of process or because they are out of time (see paragraph 15 at page 111) but cannot proceed because they amount to a collateral attack on the judgment of the Ferris Tribunal and of the Employment Appeal Tribunal upholding it (see paragraph 17 at page 112). Regional Employment Judge Lamb characterised this as an "attack on the merits of the previous decision".

75 I accept the submissions of Mr Medhurst on this point. In my view if the analysis of Regional Employment Judge Lamb is to be accepted, many section 43B(1) disclosures could not escape being stigmatised as collateral attack abuse of process. Mr Medhurst pointed out that the answer may lie in the statutory rubric of the section; what is at issue is "the reasonable belief of the worker making the disclosure" that the "disclosure of information which … tends to show … (c) that a miscarriage of justice has occurred, is occurring or is likely to occur". Here Mr Parker's case is that he was subjected to detriment because he asserted that lies had been told and these lies had procured the adverse decisions of the Ferris Tribunal and the Employment Appeal Tribunal.

76 I accept, of course, that such accusations may be at the heart of many appeals (not only in this jurisdiction) and, rather like radiation, can have a protracted half life long after an appeal has ended. But a distinction must be made between an attempt through the medium of further litigation to resurrect the issue, which has already been the subject of an (adverse) decision, on the one hand, and a complaint of mistreatment by an employer contrary to a statutory prohibition, which is triggered not by the actual decision but by the disclosure of information "which …tends to show" that something may be wrong with the decision, on the other hand. The former is a collateral attack and potentially an abuse of process; the latter is not. I use the word "potentially" because it seems to me that even in such a case the court or tribunal should also take a "broad, merits based" approach suggested by Lord Bingham in Johnson v Gore Wood.

77 Regional Employment Judge Lamb did not adopt such an approach but, more significantly, I take the view that he failed to differentiate between a potentially abusive collateral attack and what Parliament has given statutory protection to by section 43B(1)(c) of the ERA. The protection against abuse has been built into the statutory regime by the inclusion of the filter that the belief must be "reasonable". It is worth noting that in paragraph 53 (c) of his judgment in the case of Mr P J Foster v Bon Groundwork Ltd [2011] UKEAT/0382/10/SM Silber J suggested that in abuse of process cases it may be necessary to hear evidence and I do not understand him to make any exception for collateral attack cases. So if evidence is heard, some collateral attack abuse of process cases may have a superficial similarity to some section 43B(1)(c) detriment cases but the fundamental difference remains that in abuse of process the claim is prevented from proceeding on the merits whereas in the section 43B(1)(c) case it is determined on the merits. In my view Judge Lamb erred in law in not recognising that the detriment cases, which Mr Parker wished to advance, may be different to collateral attack abuse of process. They should not be prevented from being heard but should have been determined on their merits, including consideration as to whether Mr Parker's belief was reasonable.

**Summary Conclusions**

78 Accordingly, the appeal succeeds, at least in part. If I have correctly identified the judgment of Regional Employment Judge Lamb on issue estoppel, as residing in paragraph 9 of the refusal to review letter (see paragraphs 56 to 61 above) his judgment on issue estoppel, must be treated as being correct in law and to that extent the appeal does not succeed. If I am wrong about that and the judgment of Regional Employment Judge Lamb on issue estoppel remains that expressed in paragraph 19 of the PHR judgment, it is based on an error of law and there should be substituted for it paragraph 9 of the refusal to review letter. Therefore issue estoppel precludes further consideration of:

(1) interpretation of the terms and conditions documentation;

(2) non-applicability of the terms of any collective agreement;

(3) the unlawfulness of the "banked hours" scheme;

(4) the harmonisation of the terms and conditions

(5) alleged breach of the implied term as to trust and confidence referable to the "banked hours scheme" or the harmonisation exercise.

79 But as to (5) there must be this qualification. Although the Appellant is estopped from saying that there was a breach of contract in the period 2004 to 2006 issue estoppel does not prevent him from saying that either the Respondent's conduct in relation to the banked hours scheme or the approach to implementation of it, or both, were matters that should be weighed in the balance when deciding whether the resignation amounted to a dismissal. The same approach applies to the alleged dismissal by reason of having made protected disclosures. So issue estoppel prevents reiteration as to whether what happened amounted to breach of contract but it cannot prevent consideration of the terms of his alleged disclosure.

80 Neither issue estoppel nor Henderson abuse of process prevent the Appellant from raising unlawful deduction from wages or from raising the detriment claims of an alleged shortfall in pay between 2004 and 2006 and psychiatric illness in the autumn of 2006 and the appeal is allowed on that point. To the extent that is necessary for there to be an amendment of the ET1 form so as to allege unlawful deductions from wages as identified by Mr Medhurst in the course of his argument, permission is granted to Mr Parker to do so.

81 Likewise the appeal succeeds on the detriment claims of alleged psychiatric illness between July and September 2007 and following the dismissal of the appeal in May 2008.

82 Permission to amend the ET1 to raise all of the above claims is granted.

Published: 04/04/2011 11:14

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