Mr D Liu v Crown Prosecution Service — 2022

Mr Liu was employed by The Crown Prosecution Service from 13 March 2017 to 1 September 2017 and was dismissed on capability (performance) grounds after not successfully completing probation. He had brought an earlier claim in 2019 alleging, among other matters, direct race discrimination relating to exclusion from group meetings, probation progression, and dismissal. Those complaints were dismissed in November 2019 because the Tribunal had no jurisdiction to hear them, as they were out of time.

In this second claim, issued on 21 March 2021, Mr Liu alleged race discrimination based on exclusion from calendar invite recipient lists for fortnightly team meetings, being blocked from completing his probation plan, and Mr Molony making a dismissal recommendation and report with discriminatory considerations. He argued that disclosure of calendar invites confirmed on 21 December 2020 amounted to new evidence or a new cause of action.

Employment Judge Barker found that the second claim raised issues that had already been raised and dismissed in the first claim: exclusion from invitations to team meetings due to race, discrimination in blocking probation progression, and discrimination in dismissal. The judge did not accept that calendar invites, as distinct from emails, created a fresh cause of action; they were further evidence relating to the same issue. The judgment applied cause of action estoppel, referring to Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd, and held that the claimant was barred from re-litigating the matters.

The Tribunal also recorded that the claimant accepted allegations about former colleagues' personal and professional impropriety were background information and not relevant to his race discrimination complaint. Because the second claim was dismissed in full for lack of jurisdiction due to cause of action estoppel, no remedy was awarded.