Mr A Oye v Tesco Stores Ltd — 2023

This was a public preliminary hearing concerning the relationship between the present claim and an earlier tribunal claim, case number 3300082/2022. The claimant had withdrawn the earlier claim in correspondence sent in February, March and April 2023, and a legal officer sent a dismissal judgment on 28 April 2023. The tribunal found that the claimant had capacity by 3 April 2023, that he unambiguously communicated withdrawal of the earlier claim by then at the latest, and that he had intended to end that litigation.

The tribunal refused to extend time for the claimant to have a judge make a fresh decision about the April 2023 dismissal judgment. It found that the claimant had not applied by the 14-day deadline, that the delay was not caused by lack of receipt of the judgment, and that the claimant did not challenge the earlier decision at the time because he did not then wish to continue the earlier claim.

Applying a broad merits-based abuse of process analysis, the tribunal held that it would be an abuse of process to bring Equality Act complaints about sex or race for acts or omissions on or before 23 February 2023, and to bring Equality Act complaints based on any other protected characteristic for acts or omissions on or before 4 November 2022. It also held that arrears of pay complaints relating to January 2023 or earlier, and any unfair dismissal complaint on or before 23 February 2023, would be an abuse of process. The tribunal held, however, that it was not an abuse of process for the claimant to rely on alleged incidents, regardless of date, to support an argument that there was a constructive dismissal in or around November 2023.