Long-serving employee's fresh claim struck out as abuse of process

When a second bite at the cherry is not allowed

This case illustrates a fundamental rule of employment tribunal litigation: you generally cannot bring a claim based on the same facts as one you have already withdrawn. The claimant, a former Ministry of Defence employee with 34 years' service, was dismissed for misconduct in 2014. He brought a claim in 2015 for unfair dismissal, age and disability discrimination, and holiday pay, but withdrew it after advice from his doctor and solicitor. Seven years later, he tried again, presenting a new claim that he admitted was 'mostly the same' as the earlier one.

The tribunal had little difficulty in striking out the claims on the grounds of res judicata and abuse of process. The claimant's only new point was that some personal belongings from his locker had been destroyed, but that did not change the essential nature of the dispute. The tribunal noted that the claimant had not provided any medical evidence to explain why he could not have brought the claim sooner, and that his discussions with politicians did not justify the delay.

The deposit order pitfall

Even if the claims had not been struck out on abuse grounds, they would have failed because the claimant paid a £500 deposit order three weeks late. The deposit order gave him seven weeks to pay, with clear instructions to send a cheque to HMCTS in Bristol. Instead, he sent it to a London address, and by the time the error was corrected, the deadline had passed. The tribunal found that this was not due to any error by the tribunal or the claimant's ignorance, but simply a lack of care. The claimant did not suggest that his disability caused the lateness, and no medical evidence was provided.

Costs and consequences

The respondent sought costs, and the claimant did not rejoin the hearing for that part. The tribunal ordered the claimant to pay £4,223 in costs, including the £500 deposit (which was to be paid over to the respondent) and an additional £3,723. This is a significant sum for an individual who represented himself, and it underscores the risks of pursuing a claim that has little prospect of success or that fails to comply with procedural orders.

What this means for similar claims

For anyone considering bringing a second claim after withdrawing an earlier one, this case is a stark warning. Unless there is a clear change in circumstances or new facts that could not have been raised before, the tribunal will likely treat it as an abuse of process. Equally, failing to comply with deposit orders – even by a few weeks – can be fatal, especially if the reason is not compelling. If you have a disability, it is essential to provide medical evidence to support any request for adjustments or extensions. Finally, seeking advice from non-legal sources, however well-intentioned, is no substitute for following tribunal rules to the letter.