EAT finds doctrine of issue estoppel extends to matters of jurisdiction


The Employment Appeal Tribunal has just handed down judgment in the appeal of Pugh v RT Electrics Limited UKEAT/01771/16/DM, holding that where an Employment Tribunal had determined, as a preliminary issue, that it was “just and equitable” to extend time to hear claims of disability discrimination, it was unlawful and a breach of the principles of res judicata for a differently constituted Tribunal to re-open this issue when the matter to came to trial.


The Claimant, who had ulcerative colitis, was employed as an electrician. Amongst other things, he brought claims for a failure to make reasonable adjustments and indirect disability discrimination arising out a requirement of his job to work at sites with an increased risk of infection. A preliminary hearing had been held, on the Respondent’s application, to make an early determination as to whether these claims were out of time. This resulted in a decision by Employment Judge Povey to the effect that, whilst the claims were presented out of time, it was just and equitable to extend time and for a full tribunal to hear those claims.


At trial, the Tribunal made factual findings in favour of the Claimant, albeit on a narrower basis than pleaded, and found that he would have succeeded on these claims but for the issue of jurisdiction. The Tribunal, in a reserved judgment chaired by Employment Judge Beard, determined that the decision of Employment Judge Povey had been based on a different factual foundation and that these claims now only related to an isolated occasion and not to a continuing act of discrimination. The Tribunal therefore re-opened the issue of jurisdiction and found that it was not just and equitable to extend time.


Delivering the judgment of the EAT, Lady Wise found that Employment Judge Beard made a number of errors in his approach to this issue. He had decided to re-open the decision on time limits without considering the doctrine of res judicata. Employment Judge Beard did not have the power to re-open this issue, which had been finally judicially determined by Employment Judge Povey. An issue estoppel operated to prevent the re-litigation of this issue at trial. Lady Wise rejected the Respondent’s argument that what the Tribunal had done was exercise its power to reconsider the decision of Employment Judge Povey under rule 73 of the Employment Tribunal Rules of Procedure. The mandatory procedural requirements of that rule had not been addressed or complied with by the Tribunal nor did the case fall within the Ladd v Marshall principles on fresh evidence.


In any event, the Tribunal’s decision to re-open the issue of jurisdiction in the reserved judgment, without first giving the parties an indication that it was doing so and an opportunity to make submissions on the same, gave rise to procedural unfairness.


The Claimant’s appeal therefore succeeded and the EAT substituted findings of indirect discrimination and a failure to make reasonable adjustments. A full copy of the judgment will be published online in due course.


Tom Kirk, instructed by the Bar Pro Bono Unit, represented the successful Claimant on appeal.