Mr K Harris (Counsel) v Respondent — 2022

The tribunal was dealing with a preliminary hearing on abuse of process and amendment. Claim 2305664/2019 had originally been presented on 23 December 2019 and pleaded whistleblowing detriment, race discrimination or harassment related to race, and victimisation. Claim 2307846/2020 was later presented on 27 November 2020 and included disability discrimination, indirect disability discrimination, failure to make reasonable adjustments, victimisation, whistleblowing detriments, automatic unfair dismissal, ordinary unfair dismissal, and unlawful deduction from wages or breach of contract. The claimant was dismissed on 28 August 2020.

Applying the Henderson v Henderson principle, as explained in Johnson v Gore Wood and Franked Income Investment Group Litigation, the tribunal held that the complaints in the second claim which pre-dated 23 December 2019 could and should have been raised in the first claim. It found that the claimant had made a conscious decision about what to include in the first claim, informed by legal advice and concerns about the internal process, fears about consequences, and hope that the internal process would resolve matters. The tribunal did not accept that his mental health was a significant factor in that decision. It therefore struck out the pre-23 December 2019 part of claim 2307846/2020 as an abuse of process, against all four respondents.

The tribunal rejected the respondents' submission that the second claim was abusive in its entirety. It held that presenting a second claim for matters arising after the first claim was not in itself objectionable, and it considered it unjust to bar the post-23 December 2019 complaints simply because the claimant had also included earlier matters in the same pleading. The tribunal also noted that the pleadings were difficult to follow and required the claimant to produce a draft list of issues.

The claimant's application to amend claim 2305664/2019 was refused under the Selkent approach, as reviewed in Vaughan v Modality Partnerships. The tribunal held that the hardship to the respondents in allowing the pre-23 December 2019 amendments outweighed the hardship to the claimant in refusing them, particularly because the respondents would be required to address older events, extend the issues and disclosure, and incur further cost. A further preliminary hearing was listed for 31 January 2023.