Yesterday’s “other” employment case

Understandably and justifiably, yesterday for employment practitioners was all about the decisions from the Supreme Court in the joined appeals of Seldon v Clarkson Wright & Jakes and Homer v West Yorkshire Police CC on age discrimination.  Find the official Supreme Court press notices here.

However, also of note, was the decision handed down by the Court of Appeal in Halstead v Paymentshield Group Holdings Ltd*

The Claimant had brought employment tribunal proceedings and threatened related High Court proceedings by way of a pre-action letter threatening attaching draft particulars of claim (in accordance with the Civil Procedure Rules).  The Claimant agreed to the Respondent’s request that the tribunal proceedings be stayed but later changed his mind and applied for reinstatement of the tribunal proceedings. 

Two employment judges separately agreed to lift the stay, both of whom were apparently persuaded by the fact that, although there was a letter before action and a draft particulars of claim, no High Court proceedings in fact existed and may never actually be issued.

The EAT held that the normal rule is that the tribunal proceedings should be stayed pending resolution of a High Court claim, even though that claim has not yet been issued, and there is no guarantee that it ever will be.

The Court of Appeal disagreed.  It distinguished the present case from the earlier EAT judgment in Mindimaxnox v Gover and Ho** which concerned concurrent proceedings where both had in fact been issued in their respective courts and confirmed that threatened proceedings would not be sufficient to engage the principles in that case.

Giving the leading judgment, Pill LJ said (at paragraph 21): “ would, in my judgment, be wrong in principle to deprive the appellant of a remedy which statute has provided for him because he has chosen, without commencing proceedings in the High Court, to indicate lines of claim which may be available to him there. By ventilating the possibility of such a claim, and stating an intention to pursue it, he has not deprived himself of his statutory right to make a claim in the Employment Tribunal.”

It will come as a great relief no doubt to those potential Claimants who have possible claims in the civil courts as well as the employment tribunal that they can outline the basis of their civil case to the Respondent in accordance with pre-action protocol without jeopardising the progress of their tribunal claim. In many cases, disposal of the tribunal proceedings may well be sufficient to resolve the matter, either because the Claimant recovers the majority of the compensation sought overall, or loses and concludes that a civil court case will be a waste of time and resources.  Given the relative speed with which tribunal matters are often heard together with the less onerous costs regime (for now, at least!), it makes sense for tribunal proceedings to be dispensed with before embarking on civil court proceedings in many cases.

Granted, this decision will have little or no potential impact on the day to day running of businesses in the same way as Seldon and Homer but nevertheless will be of relevance to employment practitioners and their clients who are contemplating or are engaged in dual proceedings. 

*[2012] EWCA Civ 524.

**[2010] UKEAT/0225/10.

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