Abuse of process - Henderson and Henderson case referred to by Respondent

[Christine934]

Hi I wonder if you can help, I think this forum is amazing and I would appreciate some advice please.

 

Can a Respondent use the Henderson and Henderson argument of abuse of process (ie: you can't get a second bite of the cherry) if the claim was referred to before but only at a preliminary hearing and not in the ET1 but as a head of loss on the Schedule of Loss and was dismissed during the case management orders? (That claim went to a full hearing and I won the right to receive occupational sick pay instead of SSP.)

 

At that first preliminary hearing the Judge told me to "put a claim in" when he heard that holiday pay was previously underpaid and this was a continuing occurence.

 

However, the Respondent is relying on the word "dismissed" in their argument for getting the claim thrown out, even though the claim had not been advanced as it was during a preliminary hearing. (Something in my daze prevented me from telling that to the different Judge at the new preliminary hearing for holiday pay, as their barrister certainly didn't!)

 

Also, the old schedule of loss only referred to statutory holiday pay, but I found that I was entitled to contractual holiday pay out of time to amend the ET1 (this entitlement was in my contract which I had not seen since 2002 but they disclosed it 2 days before the hearing) so I put in my new calculations in the new claim.

 

So it is a new claim with different particulars and a different starting date and I only knew about the contractual benefits when I saw my whole contract 2 days before the first hearing during a late disclosure from the Respondent - which outlined the benefit that they had withheld since 2002. (I only got the occupational sick pay during the first hearing since it was on the ET1 as "unpaid sick pay" but at the time of filing I had only ever received SSP for some of the time I was off sick).

 

Also, to explain why I had not seen my contract since 2002, I didn't have the need to as I liked my job, but they cut my hours recently - calling me a casual worker, which I disputed since I had regular hours for years.

I hope this makes sense!

 

Any advice (or reassurance would be great as I am representing myself).

 

Many thanks in advance!

 

PS: Extra information:

 

At the first preliminary hearing the respondent pleaded”

 

”The Claimant's ET1 does not disclose any claim for holiday pay, whether by way of a wages claim or under the Working Times Regulations 1998. According such a claim is not before the Tribunal for determination".

 

In response the Judge made the following Case Management order:

"The claim for holiday pay appears only in the Schedule of Loss and is also unquantified. It was not included or referred to in her ET1 and is accordingly dismissed".

Edited June 16, 2014 by Christine934

[Christine934]

Hi there,

 

I wonder if anyone can tell me the difference between "struck out" and "dismissed", this applies to claims at the Employment Tribunal - preliminary hearing case management orders.

 

Thank you

[AndyOrch]

To "strike" is to remove a part of the complaint, such as particular defence or claim, or a reference to evidence. You can't strike out a whole action.

 

To dismiss is the have the whole action kicked out by one side or the other, or to have the judge end or throw out the case entirely by stopping any further actions on it. If the judge dismisses, it can be with or without prejudice, as in, you may or may not be able to refile the same complaint using the same reasons again.

 

Regards

 

Abdy

[Christine934]

Thank you very much for your reply I did start a thread last night on this issue but it is a bit long winded so I apologise for repeating myself.

 

If a claimant had part of a claim "dismissed" during a preliminary hearing, as the relevant part was not on the ET1 only in the schedule of loss, then is it acceptable to file a new claim with different particulars? My confusion is that the first judge advised me to file a new claim when holiday pay was dismissed as not being on the ET1, yet it was only detailed as being underpayments in statutory holiday pay (not even quantified as it was thrown in on advice by my accountant the the figures were wrong, but my employer refused to confirm the calculations). When I told the judge that the underpayments are continuing and with the discovery 2 days before that hearing that contractual holiday pay is quite a bit higher than the statutory level, he told me to "put a new claim in".

 

I am confused as to why the second judge in the new claim for holiday pay is considering the respondent's argument that the case had been dismissed once before and cannot be heard again, when I filed a new claim with a different schedule of loss on the first judge's advice. The preliminary hearing is adjourned to another day to see if my case can go forward to a full hearing.

 

Thank you again, it is quite daunting representing myself!

[AndyOrch]

I think you still have not grasped the difference...you cant have part of a claim dismissed....struck out yes.Dismissed is the whole thing..... strike out are the parts.

[Christine934]

Thank you very much for persevering with me, yes I am confused! To clarify here are the points regarding just the holiday pay part claim (sick pay went through as it was on the ET1).

 

At that hearing the respondent pleaded”

”The Claimant's ET1 does not disclose any claim for holiday pay, whether by way of a wages claim or under the Working Times Regulations 1998. According such a claim is not before the Tribunal for determination".

The Judges’ Case Management order read in response:

"The claim for holiday pay appears only in the Schedule of Loss and is also unquantified. It was not included or referred to in her ET1 and is accordingly dismissed".

 

The respondent in my brand new holiday pay claim are saying that based on Henderson and Henderson I cannot bring the holiday pay claim again as it was dismissed by the judge in a previous hearing. I am now thinking that maybe the first judge may have meant to have used the word "struck out" instead of dismissed?

 

Thank you so much again, I am very grateful for your help.

[AndyOrch]

Im sure you are correct.....that part of the claim was struck out...not dismissed.

[AndyOrch]

Unless the final matter has been adjudged then Henderson and Henderson does not apply anyway...simply amend your particulars.

[steampowered]

OK, there is a bit of confusion here. The specific question asked in your post actually relates to issue estoppel, not the rule in Henderson v Henderon. It is important to understand that these are two different legal doctrines which are similar but different.

 

The rule in Henderson v Henderson says that the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case

 

The legal concept of issue estoppel stops people from re-litigating a specific issue that has already been decided.

 

The specific question asked in your post is actually about issue estoppel, because you are asking about the dismissal of your holiday pay claim. For issue estoppel there generally has to be a decision on the merits of the claim. It doesn't sound like there was a decision on the merits of your holiday pay claim so you should be OK for issue estoppel purposes.

 

You do have a Henderson v Henderson problem but for slightly different reasons than mentioned in your post. Henderson v Henderson is about whether your claim relates to the same set of facts. Basically, once you bring a claim about a certain situation, all future claims arising from that same situation will be barred. For example, if your first claim related to the termination of your employment and it was decided by the Tribunal, then all future claims relating to the termination of employment will be barred.

 

It sounds like this will cause you a problem. In order to get around the problem you will need to argue that the second claim relates to a different set of factual circumstances than the first claim, hence it is proper for you to have two sets of tribunal proceedings rather than just the one.

 

Also, don't you have a timing problem? The ET generally only has jurisdiction to go back three months for holiday pay. If the first claim has already been through the whole process are you still in time?

 

Regarding the employment contract, it is possible to tack on one employment tribunal claim, another claim for 2-4 weeks' pay against companies who fail to provide a statement of particulars of employment within the first two months of starting work. You could always try for a cheeky amendment to the ET1 to include this but might be a bit late.

[Christine934]

Thank you very much, I just have one more question, can you advise on how I can argue the fact that the judge used the word "dismissed" as it was not appropriate? Because the judge that used the word "dismissed" invited me to put another claim in, I was not concerned at the time with his case management order.

 

Had I been wiser, maybe I should have appealed within the 42 day deadline... Would this be held against me? I wonder how I can now argue that the judge was wrong in using that word? Would quoting paragraph 69 of the Rules be helpful?

 

Correction of clerical mistakes and accidental slips

 

69. An Employment Judge may at any time correct any clerical mistake or other accidental slip or omission in any order, judgment or other document produced by a Tribunal. If such a correction is made, any published version of the document shall also be corrected. If any document is corrected under this rule, a copy of the corrected version, signed by the Judge, shall be sent to all the parties.

Many thanks again!

[Christine934]

Thank you very much for your reply, the employer has not been paying holiday pay correctly for years, so as it was an ongoing problem I was able to get past the three month deadline, so if I agrue that the holdiay pay figures are different as they are contractual rather than statutory, I might have a chance Especially as I discovered the entitlement after about four months of asking for my contract (they only gave it up during disclosure right before the hearing, probably hoping that I wouldn't notice it as it was a huge bundle!!)

[steampowered]

That is an interesting point about only being provided with the contract late. I'm still a bit concerned that you might have a Henderson v Henderson problem, since it seems you could have raised a claim for holiday pay in the first claim. You will just have to research it and do your best (using case law indicating that the courts are quite reluctant to apply this rule in practice and explaining why the claim was not made first time around).

 

 

If the first claim is still live, then you should be trying to amend the particulars not issuing a second claim.

[AndyOrch]

No need to argue it he has invited you to submit a further claim...forget the respondent and their Henderson plea.

[Christine934]

Hi thank you again, yes I am worried, but I didn't amend the ET1, just put it on the schedule of loss as I really thought that I would get some feedback from the employers during the grievance process (which ended six days before the first hearing so I could not have put in an application to amend the form, as I think any claimant has up to seven days before the hearing to alter it.

 

So the first judge advised me to put in a new claim rather than amend the ET1, as am I correct in thinking the other side have to agree to any amendments?

 

But hopefully since it is an entirely different claim based on my contract not the statutory minimum, it will be heard at a full hearing..

 

Also, I was wondering if you could point me in the right direction on finding similar cases, are there any websites that you could recommend?

 

Many thanks again

[steampowered]

Is the first case still live?

[Christine934]

No it is finished now, it went through to a full hearing for unpaid sick pay.

 

I had put in a claim for unpaid sick pay based on ssp, but when I found the full contract it stated details of occupational sick pay, so I was able to get my hours confirmed as being "normal" hours and the sick pay would be based on those, (the respondent had maintained that I had no regular hours and I was a casual worker).

 

The holiday pay was placed on the schedule of loss after that ET1 was filed as I found those underpayments about a month afterwards. I mananged to get the back pay on sick pay and also hearing costs

 

I am actually still employed but on long term sick leave due to stress at work.

Edited June 17, 2014 by Christine934

[Christine934]

Hi there,

 

I was wondering what the special grounds were for lodging an appeal against a tribunal judgement if the timing is past 42 days?

 

This is because of a mix up at the court we did not receive the ET3 until 35 days after the court received it, the response in the ET3 would have prompted us to get an appeal/reconsideration in against the first tribunal judgement (it all hinged around the Judge's intention of one word that the Respondents are using to try and quash our claim).

 

Also, how does rule 69 operate? Could this apply to a case management order?

 

Many thanks!

[honeybee13]

Hello Christine.

 

Does this relate to any of your previous threads please? It usually helps the advisers here if they can see a bit of history.

 

HB

[SabreSheep]

http://www.justice.gov.uk/tribunals/employment-appeals/appeals

 

Not sure but this bit *may Help*

 

Under these circumstances you may count the 42 days from the date the reasons were sent to you - if:

 

• you requested written reasons at the Employment Tribunal hearing; or
  
• you wrote to request written reasons from the Employment Tribunal within 14 days of the date the judgment was sent to you; or
  
• the Employment Tribunal reserved its reasons and gave them subsequently in writing.
  

These are the only circumstances where this exception applies. So if, for example, you requested the reasons more than 14 days after the judgment was sent to you, even if your request was granted, then the 42 days must be counted from the date on which the judgment (not the reasons) was sent to you.

[steampowered]

The ET3 is basically the respondent's defence and comes quite early in the process, before judgment.

 

Do you actually meanthe ET judgment only came 35 days after it was issued? If not can you please explain a bit of context about why you missed the 42 day deadline as your post is hard to understand?

[becky2585]

Agree with SP - we need more information to be able to help

 

Could you provide a full chronology, including dates?

[Christine934]

Oh thank you very much for this, here is the full history, I am copying our representative's notes - there are two cases:

 

1. The deadline to appeal against decision made on the first case (case management orders at a preliminary hearing) on 27th February 2014 would be 42 days from when the decision was sent – 42 days from 6th March 2014 was 2nd May 2014.

2. We filed a new ET1 straight after the first preliminary hearing on the 28th February on advice of the Judge. Details of the respondents ET3 to this new claim (and also received at the same time the initial consideration by the Judge who wrote that unless we gave argument in writing the case would be dismissed) was not received until 5th May 2014 after the deadline to appeal to the first case had passed (2nd May).

3. With help from our representative we submitted a response to the initial consideration on 6th May 2014. This was in view of the fact that we could not appeal to the decision made on the 27th February in order to get a true picture of what was said as it was out of time.

4. It was not until after the preliminary hearing on 30th May 2014 that we met again with the solicitor who advised that an appeal should have been lodged against the decision made 27th February 2014 to clarify matters pertaining to the new claim and possibly asking advice regarding the intention of the word "dismissed", but would now be out of time.

5. We relied upon the guidance given by the judge on 27th February 2014 to submit another claim and not being legally proficient saw no reason to consult with the solicitor concerning the use of the word ”dismissed” in the case management order made.

6. Had we received details of the respondent's ET3 earlier then we would have been able to seek proper legal advice within a reasonable time and to have a lodged an appeal against the judge's decision in time.

7. It seems to be a travesty of justice that a claimant cannot rely on the guidance given by the judge or be afforded the opportunity to obtain timely legal opinion because of the extraordinary delay in receiving the respondents’ ET3 some 35 days after its’ receipt by the court.

 

I hope this makes sense, it relates to these threads: Abuse-of-process-Henderson-and-Henderson-case-referred-to-by-Respondent and Struck-out-vs-Dismissed (I can't post links yet as I haven't been posting for long enough).

 

Many thanks again

Edited June 19, 2014 by Christine934

[Christine934]

Sorry I am deleting the duplicate post here but I have to write something in the box...

[steampowered]

I'm afraid I do not think there is a realistic chance of appealing the first judgment at this stage. It is possible to have the 42-day time limit extended but you need a very good reason. You have missed the deadline by quite a long way and I do not think it is convincing to argue that you would have issued the appeal because you didn't receive the ET3 in the other case. In any event it is not obvious to me what your grounds of appeal would be.

 

I think you are better off focussing on the second case.

 

You need to understand one important point. The legal point about Henderson v Henderson is not that your holiday pay claim was already dismissed (although it is relevant to the broader abuse of process point). The point about Henderson v Henderson is that you were supposed to bring ALL of your claims the first time around. The point about Henderson v Henderson is that there is not supposed to be multiple different sets of litigation arising from the same set of facts; you are supposed to make every claim that you want to make in the one case. If you don't raise a possible claim when you have the chance it is deemed to have been waived (even if the court never made a decision on the point, because the point was never raised).

 

Your argument will have to be that you did not raise your claim for contractual holiday pay claim the first time around because you couldn't possibly have known about it due to the Respondent's failure to provide you with a copy of your contract (potentially contrary to section 1 Employment Rights Act 1996 - see http://www.legislation.gov.uk/ukpga/1996/18/section/1). Its not a watertight argument but I think is your best shot.

[Christine934]

Thank you so much for your help, it's been great and has helped to clarify things so much, but there is one final matter regarding this that I have not made clear before, and that is this (copied from our representative's notes):

 

CASE MANAGEMENT DIRECTION AND ORDER WAS NOT IN ACCORDANCE WITH THE PLEADING OF THE RESPONDENTS.

 

1. RESPONDENT'S SUBMISSION FOR HEARING: UNDER INTRODUCTION 2 READS AS FOLLOWS:

 

“Once the claims have been clarified, and where necessary, decisions as their merits have been taken, the Respondent submits that any remaining claims should be stayed to allow the parties to reach agreement on them. The Respondent draws the Tribunal’s attention in this connection to its letter of 25th February 2014 containing the Claimant’s final grievance outcome. Staying any remaining claims for agreement between the parties is in accordance with the overriding objective, particularly given the ongoing employment relationship”

 

The letter dated 25th February 2015 included the following statement:-

 

During the meeting we discussed your contractual status and we agree, that you should have been treated as a permanent contracted member of staff and therefore when you return to work we will: consult with you changes to your hours of work; review your annual leave, paternity leave and sickness payments and make good any shortfall”

 

2. RESPONDENT'S SUBMISSION FOR HEARING: UNDER PARAGRAPH 29 READS AS FOLLOWS:

The Claimant's ET1 does not disclose any claim for holiday pay, whether by way of a wages claim or under the Working Times Regulations 1998. According such a claim is not before the Tribunal for determination.

3. JUDGE'S RULING AS A CASE MANAGEMENT ORDER: UNDER PARAGRAPH 7 'REASONS' READS:

"The claim for holiday pay appears only in the Schedule of Loss and is also unquantified. It was not included or referred to in her ET1 and is accordingly dismissed".

 

Would the above notes have any bearing on how we should proceed? (Although the final grievance outcome looks okay on the surface, they are only saying that they will "review" any shortfall, and knowing them I thought it best to proceed to court!

 

Also, about the contract issue, I lost my copy ages ago when I signed it in 2002, when I asked for it they gave me the job description but not the general terms and conditions (with the great contractual rights including enhanced holiday pay). The day after they said "actually that contract was terminated and here is a casual worker contract for you to sign now". When I refused to sign it they got their solicitor to draw up a zero hour contract. It was full of errors so I sent it back. It came back with more. They even had the company number of a dissolved company on it. I still thought I was a contracted employee so I kept going and didn't sign anything. They held up the 2002 contract in court on the 27th February saying it was terminated and also the zero hour contract. The judge asked "was the zero hour one signed?" They said "no". So the judge made reference to the 2002 contract and said "that's her contract". This is because the termination form they kept showing me was not signed by me, it was an internal form, so it did not effectively terminate the contract.

 

Phew... So I'm thinking of arguing that as they refused to recognise the 2002 contract, there was still no way I could have had them recognise my rights under it outside of court (even if I remembered exactly what was in it), and only a court would have been able to deem it as being mine. So I believe another hearing would have been the only way to go as only then could I have been able to quantify any claim under it.

 

Many many thanks again!

Edited June 20, 2014 by Christine934