Appeal No. UKEAT/0502/06/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 November 2006

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

BRISTOL CITY COUNCIL	APPELLANT

MR F P PALMA	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS A FRAZER
(of Counsel)
Instructed by:
Bristol City Council Legal Corporate Services
The Council House
College Green
Bristol
BS1 5TR	
For the Respondent	No appearance or representation by or on behalf of the Respondent	

SUMMARY
Practice and Procedure – Striking-out/dismissal
Fourth occasion in which Claimant brought essentially the same claim against the Respondent. Chairman below refused to strike out claim. Decision reversed. Issue Estoppel – abuse of process. 

HIS HONOUR JUDGE PETER CLARK

1.	This is the hearing of an appeal brought by Bristol City Council, the Respondent before the Bristol Employment Tribunal, against an order made by a Chairman, Mrs Olga Harper, sitting alone at a pre-hearing review held on 3 August 2006, that the Claimant, Mr Frank Palma’s, claim of breach of contract in ET case no. 1401361/06 may proceed to a full merits hearing. That order, together with the Chairman’s reasons, was promulgated on 18 August. 

2.	Mr Palmar does not appear today for understandable reasons of expense. I have taken into account the contents of his answer in these appeal proceedings, which stands as his Skeleton Argument. He has also lodged a complete copy of the NJC for Local Government Services’ National Agreement on Pay and Conditions of Service, most recently updated in June 2005, (the Green Book), together with a copy of the Respondent’s Working Arrangements Policy (WAP), effective from 1 July 2004, and other documents.

3.	The issue before the Chairman at the PHR and before me on appeal is whether the breach of contract claim has been previously litigated between these parties so that it ought to be struck out. The Claimant was for many years employed in local government service. His service was transferred to the Respondent on 1 April 1996. He resigned from the employment on 3 April 2006. His current claim, the 2006 claim, lodged on 5 May 2006, also includes a complaint of constructive unfair dismissal. That claim is wholly unconnected with the breach of contract claim with which I am concerned. The constructive dismissal claim is proceeding to a full merits hearing before the Tribunal in any event. 

4.	His employment with the Respondent was as a residential child care worker in a children’s home. As part of his contractual duties he was from time to time required to sleep overnight at the home. He received a sleeping-in allowance set by the National Agreement; time spent sleeping-in was not originally included in his 37 hour working week. In November 2001 the Claimant presented an application at the Bristol Tribunal complaining of unauthorised deductions from wages in respect of night working time; the 2001 claim. That claim was dismissed on withdrawal. In December 2003 he brought a second claim, the 2003 claim, based, an Employment Tribunal chaired by Mr J D Bedford found, in a decision with reasons promulgated on 21 June 2004, on the same issues raised in the 2001 claim. Applying the Court of Appeal’s approach in Barber v Staffordshire County Council [1996] IRLR 209, that Tribunal dismissed the 2003 claim on the grounds that it was “res judicata”. The principle of issue estoppel applied: see reasons paragraph 9. 

5.	In February 2005 the Claimant commenced two further sets of proceedings against this Respondent. Those in the Tribunal are unrelated to the night duty issue and were compromised. Those commenced in the Bristol County Court are material. By a claim form lodged on 4 February 2005 he said this:
“(1) Unlawful deduction of wages
The European Working Time Directive 93/104/EC of 23/11/1993 together with two recent European Court of Justice Judgments C-303/98 and C-151/02 informs what is Working Time. 
My employers have not ensured that payment for Working Time whilst undertaking sleep-in duty at my employer’s premises. The sleeping-in is usually a 7 or 8 hour period starting at midnight and finishing at either 7 or 8 am. This should be paid at overtime rates of pay as my normal Basic Contractual Hours had been exceeded.”

6.	In an attached undated witness statement signed by him as true the Claimant referred to Council Directive 93/104/EC, the Working Time Directive, and two Judgments of the ECJ in relation to sleeping-in duties. His claim was back-dated to at least 1998 when the working time regulations were brought into force by the UK Government to comply with its obligations under the Directive. 

7.	On 25 April 2005 the Claimant wrote to the County Court in connection with that claim, number 5135B5O1825, in these terms: “With receipt of this letter I wish to cancel (dismiss) my County Court hearing at Bristol County Court for Friday 29 April 2005 at 2.30pm and withdraw the claim below.” He then identified the claim number and the Defendant, this Respondent.

8.	On 29 April 2005 District Judge Stuart-Brown, sitting at Bristol County Court, having heard the Solicitor for the Council and the Claimant not attending, ordered him to pay the Council’s costs assessed at £657.93 by 13 May 2005. That order is dated 5 May 2005. 

9.	The 2006 claim revisits payment for sleeping-in duties. The Respondent contended that he could not do so. Mrs Harper rejected that contention. Her principal reasoning was, first that the Claimant’s contract of employment dated 22 June 1995 was in place at the time of the 2001 and 2003 claims, whereas by the time of the 2006 claim the position had changed. On 7 June 2004 he had been issued with new particulars of terms and conditions of his employment and the WAP did not come into force until 1 July 2004; that was a local agreement. She was not persuaded that the position before and after June/July 2004 was not materially different. Secondly she noted that the County Court claim in 2005 did not proceed to a hearing. Although satisfied that it concerned the same contractual arrangements as applied in the 2006 claim, none of the three forms of res judicata, issue estopell, cause of action estoppel and the rule in Henderson v Henderson (1843) 3 Hare 100 applied because there had been no determination in the County Court proceedings. The Claimant’s claim was not dismissed (compare Barber). Further there was no abuse of process in the Claimant bringing the 2006 claim because no notice of discontinuance had been served by him in accordance with the Civil Procedure Rules (CPR). 

10.	In this appeal the Respondent challenges each strand of the Chairman’s reasoning. I begin with the County Court proceedings. Although the claim was formulated as a claim for unauthorised deductions it could have been framed in breach of contract: see Henderson. I agree with the Chairman that it related to the same contractual arrangements as were relevant to the 2006 claim. 

11.	What then is the significance of the Claimant not serving formal notice of discontinuance under part 38 CPR? Having considered the provisions of part 38 it seems to me that had the County Court proceedings stood alone as previous proceedings the Chairman’s decision on that part of the case cannot be impugned. There was no formal notice of discontinuance under part 38. However the order of the district Judge, making a costs order in favour of the Respondent before me, did not include an order dismissing the claim. It follows that there was no judicial determination, actual or deemed, to found a bar on future proceedings following the reasoning of the Court of Appeal in Barber. 

12.	I therefore turn to Miss Frazer’s principal submission, which relates to the Chairman’s findings at paragraph 6 of her reasons where she said this:
“The 2001 claim and the 2003 claim related to the Claimant’s then contract of employment dated 22 June 1995 and the National Agreement. On 7 June 2004 the Claimant was issued with a new statement of particulars, which appears in the bundle of documents at page 50. He also was subject to what is called the Working Arrangements Policy, which was effective from 1 July 2004. He indicates that he has received a further new contract. I am satisfied therefore that neither the 2004 contract or any later contract, and the Working Arrangements Policy, were therefore not the subject of the litigation in the 2001 and 2003 proceedings. The Respondent says that they are not materially different but I have nothing before me to indicate that that is the case. I conclude that in respect of his current claim, neither Action estopell nor strict issue estoppel apply since his current contract of employment and the working arrangements policy were not the subject of the 2001 and 2003 proceedings.”

13.	Miss Frazer has referred me to a direction given by the Regional Chairman on 1 August 2006 in relation to the PHR before Mrs Harper. It reads:
“The Regional Chairman does not consider that any substantive issues of fact are likely to be determined at the pre-hearing review and it is not desirable for it to be conducted by a Tribunal of three. This is primarily a legal issue and evidence (of any substance) is unnecessary.” 

14.	Nevertheless the Chairman appears to have made a finding at paragraph 6 rejecting the Respondent’s submission that there was no material difference between the contractual arrangements before and after the summer of 2004. Miss Frazer submits that that is a finding wholly unsupported by evidence. If that be correct that is an error of law: see Piggott Brothers & Co Ltd v Jackson [1991] IRLR 309. Miss Frazer has carefully taken me through the relevant contractual terms by reference to the Claimant’s contract of employment dated 22 June 1995 and the National Agreement, which was incorporated into that contract, which applied to both the 2001 and 2003 claims. She has also taken me to the particulars of terms and conditions of employment issued to the Claimant on 7 June 2004 and the Working Arrangements Policy, paragraph 21. 

15.	I am quite satisfied, having compared those documents, that there is no material difference. In his answer in this appeal Mr Palma submits that the WAP removed a 30-minute call out element, which had previously applied by virtue of the incorporated National Conditions. However it seems to me that that condition remained under the WAP, as it had been earlier, because by paragraph 21: 
“Employees who are required to sleep-in on the premises shall receive the nationally agreed amounts (National Joint Council for Local Government Services National Agreement on Pay and Conditions of Service, known as the Green Book).” 

16.	In the version of the Green Book which has been lodged by Mr Palma, point 3(e) of the National Conditions provides:
Sleeping-in duty: 
“Employees required to sleep-in on the premises shall receive an allowance as set out on the card inside the back cover. This allowance covers the requirement to sleep-in and up to 30-minutes call-out per night, after which the additional hours provisions will apply.”

17.	It seems that that provision has been in place in the National Agreement since 1997. It remains in the National Agreement and that provision is incorporated into the local WAP by virtue of paragraph 21 of that document. In these circumstances I accept Miss Frazer’s submission that there is no material difference between the contractual terms being considered by the Tribunal chaired by Mr Bedford in 2004 and the claim presented by the Claimant in 2006. Accordingly the finding of the Chairman is, in my judgment, wholly unsupported by evidence, indeed is contrary to such evidence as was before the Chairman, and on that basis the appeal succeeds. 

18.	However there is a further and final consideration. I have been taken to the speech of Lord Bingham in Johnson v Gore Wood [2001] 1 AER 481 at 499, where his Lordship said: 
“While the result may often be the same it is, in my view, preferable to ask whether in all the circumstances a party’s conduct in an abuse, than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstance.”

19.	Properly applied, the rule in Henderson v Henderson has in my view a valuable part to play in protecting the interests of justice. Strictly the rule in Henderson v Henderson was concerned with causes of action which could have been brought in previous proceedings but were not. This case, it seems to me, is rather stronger. Here the Claimant has effectively sought to litigate the same issue on four separate occasions: first in the 2001 claim; secondly in the 2003 claim; thirdly in the 2005 County Court proceedings, and; fourthly in the 2006 claim, now under consideration.

20.	I am quite satisfied that that is an abuse of the process, so for this further reason I shall allow this appeal, reverse the decision of the Chairman below, and direct that the breach of contract claim in the 2006 claim be struck out.