At a Preliminary Hearing, the Claimant conceded that matters pleaded in the earlier claim or that could have been contained in that claim could not be pursued in the present claim pursuant to the rule in Henderson v Henderson [1843] 3 Hare 100. The EJ recorded that concession in a case management order, but made clear that "It will be open to the Claimant to refer to the earlier material as background and as evidence of subsequent discrimination". The ET subsequently dimissed the Claimant's claims. The Claimant argued that the ET misapplied the rule in Henderson v Henderson in this case by failing to consider facts pre-dating May 2013 when addressing and determining her claims of unfair dismissal and unlawful disability discrimination.

The EAT dismissed the appeal. The ET did not misapply the rule in Henderson v Henderson, nor did it fail to consider facts from the earlier period. It reached conclusions that directly addressed the earlier period and were permissible on the evidence and not in error of law.