The Claimant brought a claim to the ET in 2020 and then withdrew it in 2021: it was subsequently dismissed. She resigned from the Respondent's employment in 2022 and brought further claims including unfair constructive dismissal. The Respondent submitted that it was an abuse of the process for some matters to be raised in the second claim, and they should be struck out as an abuse in line with the decision in Henderson v Henderson. Even though they had never been litigated before, they were facts and matters of which the Claimant was, at least in part, if not wholly, aware at the time of the first claim and it was abusive to raise matters now which ought to have been litigated as part and parcel of the first claim. The ET refused the strike out application and the Respondent appealed.

The EAT dismissed the appeal. The ET was entirely right to have regard to the fact that the matters in dispute were not any part of the first claim and that to exclude the Claimant from proceeding with them would have the effect of denying her the right of ever litigating those complaints. It was also entirely appropriate to take into account the fact that there would in any event need to be a trial of whether there was breach of the implied term of trust and confidence and that the additional of four particulars not previously litigated were therefore less likely to amount to an abuse of the process of the court.