Mr Peter Ennis v DPD Group UK Limited PRELIMINARY HEARING — 2022

This was a preliminary hearing in the claimant’s third claim against DPD Group UK Limited. The claimant had previously brought a disability discrimination claim in which Employment Judge Hutchinson had decided on 11 June 2020 that he did not have a disability within section 6 Equality Act 2010. In the third claim, the claimant pleaded unfair dismissal and disability discrimination after his dismissal on 30 June 2020, and the respondent applied to strike out the disability discrimination complaints on res judicata, issue estoppel and Henderson v Henderson grounds, and also applied to strike out the unfair dismissal complaint as scandalous or vexatious.

On the disability issue, Employment Judge Camp found that the earlier decision was res judicata in relation to the hernia-based disability case because the claimant had relied on the umbilical hernia at the June 2020 hearing and that issue had already been determined. The judge accepted that the claimant had referred to divarication of the recti in earlier documents, but found that he did not argue at the June 2020 hearing that divarication, either alone or together with the hernia, was itself a relevant impairment or disability under the Equality Act. On that basis, the divarication point was not res judicata or issue estoppel, but it was an abuse of process under Henderson v Henderson because it could and should have been raised in the earlier proceedings.

The disability discrimination part of the third claim was therefore struck out under rule 37 because it had no reasonable prospects of success. The judge rejected the claimant’s arguments based on alleged fraud, new evidence and the effect of the earlier reconsideration and appeal steps. He held that the later medical material from 2021 and 2022 did not change the position for June 2020, and in any event did not justify relitigating the disability issue.

The unfair dismissal complaint was treated differently. The judge accepted that, on any reasonable view, there was an arguable case that the respondent should have obtained more up-to-date medical evidence before dismissing the claimant for incapability, and that the earlier disability finding did not determine whether dismissal was fair. He therefore refused the strike-out application in relation to unfair dismissal, found that a fair trial remained possible, and left that complaint to proceed. No monetary remedy was awarded in this decision.