In the case of Onea v Contingent and Future Technologies Ltd, the Employment Appeal Tribunal (EAT) has upheld the Claimant’s stay request and ruled that an Employment Tribunal erred in rejecting the Claimant’s application to pause proceedings pending the outcome of concurrent claims before the High Court.
The Tribunal had failed to ask in which forum the dispute would be most conveniently and appropriately tried, weighing up all the relevant factors, including the degree of overlap regarding the issues to be adjudicated. Instead, it wrongly held that the Claimant had to meet a threshold criterion of showing ‘a very real risk of considerable embarrassment to the High Court’.
The EAT went on to hold that a stay should be granted, taking into account:
- the considerable overlap in multiple and complex issues pertaining to the respective claims;
- the likely greater reading time available to the High Court;
- the high value of the claims; and
- the embarrassment that would be caused to the High Court if the Employment Tribunal claim were to be determined first.
The case involved a Claimant who had been dismissed from his employment after making an allegation of wrongdoing against a fellow Director. He brought an Employment Tribunal claim for detriment and automatically unfair dismissal in consequence of having made a protected disclosure, ‘ordinary’ unfair dismissal (constructive or express) and wrongful dismissal. He subsequently applied for the claims to be stayed pending resolution of two High Court proceedings, namely:
- a breach of confidence action brought against him by his former employer, alleging that he had made unauthorised recordings and improperly accessed its IT systems; and
- an unfair prejudice petition he had filed against his fellow Directors and former employer, complaining about the impact on his shareholding of being treated as a ‘bad leaver’.
The Employment Tribunal refused the Claimant’s application to stay proceedings, finding that he had failed to establish a very real risk of considerable embarrassment to the High Court since he had not shown that there was a considerable overlap between the respective disputes.
The Claimant appealed, arguing that the Tribunal had failed to take into account the considerable degree of overlap between the High Court and Employment Tribunal proceedings.
The EAT allowed the appeal, holding that the Tribunal had failed to ask in which forum the dispute would be most conveniently and appropriately tried, as the authorities required. Rather than weighing up all the relevant factors and addressing this question, the Tribunal wrongly held that it was incumbent on the Claimant to show ‘a very real risk of considerable embarrassment to the High Court’. While the degree to which the High Court would be embarrassed was a highly relevant matter, there was no such threshold requirement. The Tribunal’s failure to apply the correct test plainly amounted to a material error of law, invalidating the exercise of its discretion.
The EAT further held that the Tribunal did not take into account a relevant factor, since it failed to appreciate that there was a considerable degree of overlap between the Tribunal and High Court claims concerning the issues to be adjudicated. Regarding the High Court confidentiality claim, there were mutual issues as to whether the Claimant made unauthorised recordings and transcripts of meetings; whether he improperly accessed his former employer’s IT systems; and whether he improperly downloaded documents from those systems. As for the High Court unfair prejudice petition, there were mutual issues regarding whether the Claimant was lawfully dismissed for gross misconduct; whether his former Employer acted in repudiatory breach of contract in relation to the disciplinary proceedings; and whether the Claimant made a genuine whistleblowing complaint.
The Tribunal also erred in identifying as one of the reasons for declining the stay, that the application should have been made to the High Court, rather than to the Tribunal. The EAT held that if an application for a stay is made to the Tribunal, then the Tribunal should decide the issue, unless there is a particular reason why this should be deferred the High Court.
With the parties’ consent, the EAT determined the application for a stay itself, holding that it should be granted, pending the resolution of the High Court claims. In doing so, it took into account the considerable overlap in multiple and complex issues, the likely greater reading time available to the High Court, and the high value of the claims. It further observed that if the Employment Tribunal claim were to be determined first, issue estoppel would arise in respect of matters that were very significant to the resolution of the High Court claims, which would embarrass the Court. Where such embarrassment arises, the protocol is for the High Court proceedings to proceed first, and the Employment Tribunal claim to be stayed.
The EAT’s decision is a reminder to employment tribunals that they should carefully consider all the relevant factors when deciding whether to stay proceedings pending resolution of concurrent High Court claims. If you are also facing issues related to making an employment tribunal claim, feel free to contact our solicitors for expert legal advice.
Mark Lafferty is a senior employment law solicitor at DPH Legal. Mark acts in the employment tribunal for respondents and claimants alike and also has extensive litigation experience in the Employment Appeals Tribunal, County Court, High Court and Court of Appeal. He has experience in dealing with TUPE, Unfair Dismissals and discrimination. In the past, Mark has held lecturing posts at Warwick University and the city of Oxford college. Mark has a long-standing membership within the Employment Lawyers Association and The Law Society. To contact Mark, visit the Contact Us page. For media enquiries: info@dphlegal.com