London Borough of Haringey v O’Brien (Practice and Procedure: Estoppel or Abuse of Process), Court of Appeal - United Kingdom Employment Appeal Tribunal, December 22, 2016, [2016] UKEAT 0004_16_2212

Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:London Borough of Haringey v O’Brien (Practice and Procedure: Estoppel or Abuse of Process)
Resolution Date:December 22, 2016

Copyright 2016

Appeal No. UKEAT/0004/16/LA



At the Tribunal

On 27 September 2016

Judgment handed down on 22 December 2016






Transcript of Proceedings







PRACTICE AND PROCEDURE - Estoppel or abuse of process

DISABILITY DISCRIMINATION - Reasonable adjustments



DISABILITY DISCRIMINATION - Exclusions/jurisdictions

UNFAIR DISMISSAL - Reasonableness of dismissal

Practice and procedure - estoppel; disability discrimination reasonable adjustments (sections 20 and 21 Equality Act 2010); discrimination arising from the consequences of disability (section 15 Equality Act); harassment (section 26 Equality Act); time limits (section 123 Equality Act); unfair dismissal (section 98(4) Employment Rights Act 1996)

The Claimant was a teacher who suffered from a disability sustained in the course of her employment. The Respondent had initially refused to recognise that the Claimant was entitled to be paid in full when on sick leave and this and other matters, including other allegations of disability discrimination, were the subject of earlier ET proceedings. The first ET proceedings were ultimately determined in the Claimant's favour. Meanwhile, however, the Claimant had been subject to the Respondent's capability procedures and was ultimately dismissed. The Claimant brought a further ET claim, pursuing various complaints of disability discrimination and unfair dismissal.

The ET held that all claims relating to matters prior to the lodgement of the first ET claim were an abuse of process (applying the principle laid down in Henderson v Henderson). Otherwise, it allowed that certain of the Claimant's complaints of disability discrimination were made out and upheld her claim of unfair dismissal.

On the Respondent's appeal and the Claimant's cross-appeal.

Held: allowing the appeal in part and dismissing the cross-appeal.

The ET had failed to address the Respondent's objection that the Henderson v Henderson principle applied to all matters that had taken place prior to the hearing of the first ET claim (not just the lodgement of the claim); either the ET had assumed that the principle only applied up to the date of the later claim (which would be wrong in law) or it had failed to address the point. Had it done so, it would have been bound to find that the matters that had occurred prior to the hearing of the first ET claim could and should also have been included within those proceedings. In the alternative, on the failure to pay the Claimant her full salary, this had been a matter raised in the first ET proceedings in any event and the Claimant was issue estopped from pursuing it in the second.

The ET had further erred in its approach to the tests to be applied under sections 15 (discrimination because of something arising from the consequences of disability) and 26 (harassment) of the Equality Act 2010. There was no indication that it had considered how the unfavourable treatment was ``because of'' something arising from the consequences of the Claimant's disability for the purposes of section 15 or as to how it had found that the unwanted conduct was ``related to'' the relevant protected characteristic. Either it had failed to apply the correct test or it had failed to explain how it had done so.

The ET had also erred in its approach to time limits in respect of the reasonable adjustments claims, failing to treat the failure to make the adjustments in question as an omission and further failing to determine the date of that failure. Had it been necessary to determine the point, the ET's conclusion on continuing act was also inadequately explained.

The ET had, however, reached a permissible view on the Claimant's unfair dismissal claim and the appeal would be dismissed in this regard.





  1. I refer to the parties as the Claimant and Respondent, as below. This is the hearing of the Respondent's appeal and the Claimant's cross-appeal against a Judgment of the Watford Employment Tribunal (Employment Judge Bedeau sitting with members, Mr Jackson and Mr Bean, on 5-14 May 2015, and on 29 May and 22-23 June 2015 in chambers; ``the ET''), sent out on 4 September 2015. The Claimant was then represented, as now, by Ms Criddle, counsel. The Respondent was represented before the ET by its solicitor but is now represented by Ms Beecham, counsel. By its Judgment, the ET allowed the Claimant's claims of discrimination because of something arising in consequence of her disability (section 15 Equality Act 2010 (``the EqA'')), of discrimination by reason of failure to make reasonable adjustments (section 21 EqA), and of harassment related to disability (section 26 EqA) and unfair dismissal (section 98 Employment Rights Act 1996 (``the ERA'')).

    The Background Facts

  2. From September 2009, the Claimant had worked for the Respondent as a primary school teacher; she was employed as a class teacher, working on a full-time contract. Since June 2010, she had been disabled by reason of suffering chronic fatigue syndrome (``CFS''), a disability developed after a work-related trip to Gambia in February 2010, which led her to take extended periods of sick leave. Whilst the Claimant had returned to work on a part-time basis (six hours a week) early in the autumn term of 2010, she had then been signed off as unfit to work after the first week of the spring term 2011.

  3. The Claimant's contract of employment with the Respondent incorporated collectively agreed terms set out in what is called the Burgundy Book. By clause 10.1, a teacher who is off work by reason of an infectious or contagious illness sustained directly in the course of their employment, is entitled to be paid in full for their absence upon an approved medical practitioner having attested that they meet those requirements. The Respondent took the view, however, that the Claimant's illness did not fall within the ambit of that clause. Accordingly, on 21 December 2010, the Claimant was told that, from January 2011, she would only be paid for hours worked plus sick pay, not at her full rate of pay.

  4. At the end of March 2011, the Claimant brought her first ET claim, alleging unauthorised deduction of wages as clause 10.1 Burgundy Book entitled her to full pay. She further claimed disability discrimination under section 15 EqA 2010, in relation to the failure to pay full pay, and section 21, relating to the provision criterion or practice (``PCP'') of requiring her to work at the school between 8.00 am to 4.00 pm in November/December 2010, and of refusing to permit the recording of her meetings with the Head Teacher during that period. Those claims were heard by the ET in December 2011 (EJ Pettigrew presiding; ``the Pettigrew ET'') but were rejected; specifically, the Pettigrew ET held that clause 10.1 did not apply to the Claimant's case. The Claimant successfully appealed: by a Judgment dated 7 February 2013, the EAT set aside the ET's decision and substituted a finding that the Claimant's CFS had been contracted directly within the course of her employment. The case was remitted to the Pettigrew ET for a remedy hearing, when it was held the Claimant was entitled to be paid at full rate for her periods of absence.

  5. Meanwhile, the Respondent had embarked upon its sickness absence management policy. Some of the meetings arranged as part of this process were subsequently relied on by the Claimant as acts of discrimination, in particular, the second sickness review monitoring meeting on 25 March 2011, which went ahead in her absence, and the holding of a return to work meeting on 20 July 2011, when the Claimant was kept waiting for 30 minutes and when her request for a postponement (to permit her trade union representative to be present) was refused. On 17 January 2012, the Respondent determined the Claimant should be dismissed; her notice period ended on 30 April 2012. The Claimant sought to appeal to the school governing body but her grounds were rejected without a hearing as the Respondent considered they did not engage with the reason for the decision made. Returning to earlier events, in January 2011, the Claimant was notified by the payroll co-ordinator that there had been an overpayment in respect of her sick pay which would need to be recovered. This remained an issue at the time of her dismissal and, on 25 January 2012, she was told that a net figure of £1,258.22 remained to be deducted.

  6. On 10 April 2012, the Claimant lodged a second ET claim (the claim with which this appeal is concerned). The second ET proceedings involved 13 separate claims of discrimination pursuant to section 15 EqA, some 11 claims of harassment and two reasonable adjustment claims in relation to incidents dating from 14 June 2010 until the Claimant's dismissal in January 2012. The Claimant also complained of having been unfairly dismissed. By the time of the Full Merits Hearing (it was initially stayed pending the resolution of the first ET claim), the Head Teacher of the school, Ms Couram, had left and moved to Africa and was not prepared to return as a witness for the Respondent.

    The ET Decision and Reasoning

  7. In determining the claims before it, the ET took the view - applying the cases of Henderson v Henderson [1843] 3 Hare 100 PC and Johnson v Gore Wood & Co [2002] 2 AC 1 HL - that the Claimant was estopped from complaining of acts prior to 30 March 2011 (when she lodged her first ET claim). The Claimant had told her previous advisers of the matters raised in the second proceedings but said she had been advised that the focus would be on the unauthorised deductions claim. The ET observed:

    ``56. ... For whatever reason, her full disability claims were not pursued during the first employment...

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