United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J ALGAZY (of Counsel) Messrs Thompsons Solicitors 18 Lawford Street Bristol BS2 ODZ
For the First Respondents For the Second Respondents	MR P OLDHAM (of Counsel) Instructed By: Mr B Beechen Solicitor Devon County Council County Hall Topsham Road Exeter EX2 4QD MR R LEIPER (of Counsel) Instructed By: Mr M Lewis Head of Legal Services Torbay Borough Council Civic Offices Castle Circus Torquay Devon TQ1 3DS
For the Third Respondents	MR A LYNCH (of Counsel) Instructed By: Miss Jenkins-Evans Solicitor Plymouth City Council St Andrew's Court St Andrew's Street Plymouth PL1 2AH


 


MR JUSTICE MORISON:(PRESIDENT): The issue raised in this case relates to the application of what have been called the Henderson v Henderson [1843] 3 Hare 100 principles.

1. The facts are these. The appellants are some 130 employees of three local authorities who are the respondents to the appeal. They are all members either of Unison or of the GMB. They are employed as home care assistants. The home care workers formed part of a bargaining unit for whom the Unions were recognised as the bargaining agents. Under their terms and conditions of appointment, employees within that unit became bound by any collective agreement made between the employers and the Unions, whether or not they were members of the Union, and whether or not they were in the Council's employment at the time when that agreement was made since all members of the bargaining unit agreed to be employed on such terms as their bargaining agent might from time to time agree with the employers.
2. There has been an ongoing dispute between the local authorities and the Unions as to the terms and conditions of employment of home care workers. From the employers' perspective this category of staff enjoyed uncommercially attractive salaries whereas the home care assistants wished to compare themselves with other sections of local government employees who seemed to be better remunerated. Prior to 1995, home care assistants effectively received 3 times their normal pay for working on a Bank Holiday. In the Council's view, an agreement was reached with the relevant unions in 1995 whereby they would be paid an uplift of 20% only on their normal daily wage. In March 1997, about 145 home care workers presented claims to the Employment Tribunal. By those claims it was contended that the terms of the alleged 1995 agreement had not been agreed, and therefore the home care workers were not bound by its terms and they were entitled to be paid the going rate before the alleged agreement [thus there were claims for breach of contract and unlawful deduction from wages]. It was further contended that there were equal pay and equal value claims. Further negotiations took place between the relevant unions and the employers and a settlement agreement was reached with regard to the continuing dispute about payments for Bank holiday working and the obligation to work those days.
3. Upon agreement being reached, the applications to the Employment Tribunal were all dismissed by decisions of the tribunal, for the most part upon their withdrawal.
4. Unfortunately, the dispute rumbled on and new complaints were lodged by the appellants, some of whom were applicants in the previous litigation, some of whom could have been, but were not, joined as parties and some of whom were employed after that litigation had come to an end. The tribunal Chairman said that it was substantially the same work force re-opening the question of Bank Holiday arrangements. The claim was based upon an allegation that the home care workers were doing work of equal value to that of care and support assistants and to that of driver/care assistants.
5. The Chairman said that in the present applications

"They point to differences in the arrangements for Bank holiday and week-end work and also to differences in travel arrangements. Nevertheless it is in effect the same dispute as before but a different route has been taken."

6. The arguments before the Tribunal and before this court on behalf of the employers are that the Unions were effectively seeking to re-litigate the issues which were either raised or could have been raised in the earlier proceedings which had been dismissed, as part of the compromise settlement. In relation to the 'new' applicants [that is those who were not parties in the previous proceedings] and to claims which seemed to be merely a variation on the same them, it would be an abuse of process to allow them to proceed. The dismissal of the applications upon withdrawal was a judicial decision and not an administrative act: Barber v Staffordshire County Council [1996] IRLR page 209. Those decisions confound a plea of res judicata. Further, not only are the current equal value claims ones which could have been brought in the 1997 complaints; they were in fact raised in one of the two sample cases which had been selected to go forward for hearing. For the appellants it was argued that the compromise agreement did not compromise the equal value claims; the agreement did not deal with the issue of pay, as such. The task of the Court was to construe the agreement and decide what disputes were settled by it. Reference in this connection was made to a decision of the Court of Appeal in Dattani v Trio Supermarkets Ltd [1998] IRLR 240.
7. The tribunal concluded as follows:

"In our judgment the argument ... for the respondents is entirely correct and for the reasons set out in paragraphs 21 to 23 the applicants who are common to both the 1997 cases and the 1998 cases are simply seeking to litigate their earlier claims again and are precluded from so doing by the doctrine of res judicata. Those applications which are brought by applicants who are new to the claims in the 1998 cases are dismissed also for abuse of process in accordance with the principles of Ashmore v British Coal Corporation. The workforce is substantially the same and the issues have been dealt with in the 1997 cases. There are no special circumstances to depart from the principles of Henderson v Henderson.

It follows, therefore, that all the applications are dismissed as frivolous, vexatious and an abuse of process. All applicants are seeking to re-litigate a dispute which has already been dealt with by a decision of the Tribunal."

8. Recently, on 11 March 1999, the Court of Appeal considered the Henderson principles in an as yet unreported decision: Bradford & Bingley Building Society v Seddon & Others 11 March 1999. This decision has made the Court's task much easier than it would otherwise have been. The Court of Appeal have emphasised the clear distinction between res judicata and issue estoppel, on the one hand, and an abuse of process on the other. In relation to claims by applicants who had not been parties to the 1997 litigation, the principle of res judicata does not apply. Equally that principle cannot apply to claims which had not been made in 1997. It seems to us clear that much of what is being claimed in the 1998 litigation is identical to the claims previously made, as the Tribunal have found. In respect of those claims brought by applicants who were applicants in 1997 the Tribunal were, in our judgment correct to hold that the principle of res judicata applied.
9. The doctrine of abuse of process cannot and, perhaps, should not be closely defined. It is a judicial tool to ensure that a defendant is not harassed by a series of complaints. The law puts a premium on finality. There is also the Court's own interests to be taken into account. Access to the Courts is both a right and a privilege. To occupy unnecessarily the Court's time will adversely affect other persons' rights of access. The public interest suggests that the Court should, as it does, have a residual power to prevent its process from being abused. On the other hand, the principle of a right to a day in court means that it is only when there is an identifiable or clear abuse of process that the power to strike out should be exercised.
10. In this case, the 1997 proceedings were manifestly being brought by named individuals on behalf of the bargaining unit. It is quite unreal to suggest that if the applications had been dismissed after a hearing, a further group of employees within the unit could maintain identical proceedings. The reality is that the Unions were funding litigation on behalf of the whole unit. The litigation was designed to establish the rights of the parties vis a vis the whole unit. That litigation was compromised by a further collective agreement which applied to the whole unit and to anyone who joined it thereafter. It would be impossible to have a settlement of proceedings if new members of the unit could take up the cudgels after they had joined. In a collective dispute of the kind in issue the EAT is firmly of the view that it would be an abuse of process to permit new employees within the unit to re-open the litigation.
11. We reject counsel's submission that we should construe the compromise agreement to see what was being compromised. That suggestion was based upon Dattani. But in that case there had been no judgment of the court nor decision of the tribunal. This is not a res judicata case at all. We have, here, decisions which put an end to the litigation. The new litigation is simply an attempt to re-litigate the same matters all over again. In so far as it is arguable that the 1998 actions included different claims, we agree with the Employment Tribunal that they all arise out of the same dispute. It would have been quite open to the Unions to have advanced these claims in the first proceedings. These were not casual claims made by unrepresented litigants. The litigation represented a serious argument about equality of terms and conditions within the Councils. Sample cases had been selected for hearing. There has been no satisfactory explanation as to why what is being claimed could not have been claimed before. This is not a case where there has been some oversight or a deliberate decision to reserve part of the claim for later proceedings [cf. Dattani].
12. We take the view that the second proceedings should be regarded as a cynical attempt to increase pressure on the employers to re-negotiate a collective agreement despite the settlement of the earlier and substantially identical litigation. Repeatedly raising the same case is an abuse of process and should be stopped.
13. In our judgment, the decision of the Employment Tribunal was right and the appeal must be dismissed.