Mr J Shield v BPDTS Limited — 2019

On 5 November 2019, Employment Judge Arullendran heard the respondent's preliminary applications on the papers and submissions, without witness evidence. The tribunal applied the principles of cause of action estoppel, issue estoppel and Henderson v Henderson, and it also referred to Rule 37(1)(a) and Rule 39 of the Employment Tribunal Rules 2013. It relied on the earlier judgment of Employment Judge Hargrove dated 28 March 2018 and on Judge Hargrove's later letter confirming that the earlier tribunal had not made findings on issues arising after the ET1 in that earlier case.

The tribunal struck out the disability discrimination allegations relating to access to the disabled toilet and the requirement to park across two parking spaces. It held that those matters had already been decided in the 2018 judgment, which found adequate disabled toilet provision and held that the parking arrangement did not amount to a breach of section 15 or section 20 and did not amount to a detriment. Those allegations were therefore barred by res judicata/issue estoppel.

The tribunal also dealt with the complaint about the delay in providing Asperger's awareness training recommended by Access to Work. The respondent accepted that this issue had not been determined previously, and said the training was eventually provided on 21 and 22 June 2018 after a referral in April 2017, with the delay linked to the claimant's absence between August and December 2017. The tribunal held that the issue was not caught by res judicata and should proceed to a full merits hearing.

The remaining claims of unfair dismissal, harassment and victimisation were not struck out. Applying the approach in Anyanwu and Machkarov, the tribunal said the claimant's pleadings were sparse but that it could not say, without hearing evidence, that those claims had no reasonable prospect of success. It noted that the harassment and victimisation case appeared to concern appraisal issues, communications and the capability/dismissal process, and that the unfair dismissal claim was linked to the same factual background as the disability discrimination claim. No monetary award was made at this preliminary stage.