Ms M Abimbola v Global Banking School Limited — 2024

This was the respondent's application to strike out the claimant's third claim, which had been presented on 14 July 2023 after earlier proceedings between the parties. The tribunal recorded that the claimant had previously brought a race discrimination and harassment claim, settled that claim by COT3 dated 5 May 2023, and then issued a second claim on 3 May 2023. The third claim concerned the respondent's withdrawal of a £60,000 pension contribution from NEST and was pleaded as victimisation, with an additional harassment claim related to race.

The tribunal held that issuing the second claim did not itself breach the COT3 because that claim pre-dated the settlement by two days. Although the tribunal had already found that continuing to pursue the second claim was vexatious and had no reasonable prospect of success because it had been compromised by paragraph 7(d), that was not the same as a breach of the agreement. Paragraphs 12 and 13 did not, on their wording, prevent the claimant from instituting proceedings, and the respondent therefore did not establish a contractual breach by the mere bringing of the second claim.

The tribunal found instead that the respondent breached paragraph 5 when it contacted NEST on 1 June 2023 to withdraw the pension payment. The judge treated that withdrawal as a breach of a fundamental term of the agreement. Applying the principle cited from Holmes v Tellemachus Ltd, the tribunal held that the respondent's fundamental breach discharged the claimant from her obligations under the COT3 thereafter, so the respondent could not rely on paragraph 7 to prevent the third claim.

On that basis, the tribunal concluded that the third proceedings were not vexatious and were not without reasonable prospect of success. The application to strike out the claim was dismissed, and the tribunal did not decide the underlying merits of the victimisation or harassment allegations. It also said it was unnecessary to determine whether paragraph 7(d) would, in any event, have been drafted broadly enough to cover the third claim.