NHS employee's constructive dismissal claim partly blocked by earlier withdrawn claim
An NHS employee who withdrew an earlier tribunal claim cannot re-litigate the same factual allegations in a later constructive dismissal case, the Midlands West Employment Tribunal has ruled.
1 min read · Last updated 19 May 2026
Case details
- #issue-estoppel
- #henderson-v-henderson
- #constructive-dismissal
- #litigant-in-person
- #withdrawn-claim
Key facts
- The claimant was electrocuted at work in October 2016.
- She submitted a first claim in December 2020 alleging discrimination and other claims, which she withdrew in April 2021.
- She submitted a second claim in June 2022 for constructive unfair dismissal after resigning on 29 January 2022.
- The respondent applied to strike out parts of the second claim based on issue estoppel and the rule in Henderson v Henderson.
- The tribunal struck out six factual matters that were also in the first claim (issue estoppel), but allowed four new matters to proceed.
Timeline
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Electrocution at work
The claimant was electrocuted at work, which led to subsequent health issues and disputes with the respondent.
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First claim submitted
The claimant submitted her first employment tribunal claim alleging age and disability discrimination, among other claims.
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First claim withdrawn
The claimant wrote to the tribunal withdrawing her first claim, which was acknowledged by the tribunal.
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First claim dismissed
A judgment was issued dismissing the first claim following withdrawal.
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Resignation
The claimant resigned from her employment, claiming constructive dismissal.
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Second claim submitted
The claimant submitted a second claim for constructive unfair dismissal and arrears of pay.
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Case management hearing
Employment Judge Platt held a preliminary hearing to identify the claims and list 13 incidents relied upon for constructive dismissal.
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Preliminary hearing on strike out
Employment Judge Harding heard the respondent's application to strike out parts of the claim based on issue estoppel and Henderson v Henderson.
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Judgment issued
The tribunal issued its judgment, striking out six matters but allowing four to proceed.
The legal issue
The tribunal had to decide whether the claimant was prevented from relying on certain factual allegations in her constructive unfair dismissal claim because they had either been raised in a previous withdrawn claim (issue estoppel) or could have been raised then (the rule in Henderson v Henderson).
The outcome
The tribunal partially granted the respondent's application to strike out parts of the claim.
- Six factual matters that were also part of the first claim were struck out on the basis of issue estoppel – they cannot be re-litigated.
- Four new matters that arose after the first claim was withdrawn were allowed to proceed to a full hearing.
- No compensation was awarded at this stage as the claim is ongoing.
Lessons & takeaways
- If you withdraw an employment tribunal claim, you generally cannot bring the same allegations again in a later claim – issue estoppel applies.
- The rule in Henderson v Henderson means you should bring all related complaints in one claim; you cannot save some for later.
- If you are a litigant in person, seek advice before withdrawing a claim – it may have long-lasting consequences.
- New matters that arise after a previous claim was withdrawn can still be brought in a later claim.
What this case shows
This case illustrates the importance of getting legal advice before withdrawing an employment tribunal claim. The claimant, an NHS employee, was electrocuted at work in 2016. She brought a first claim in December 2020 alleging discrimination and other complaints, but withdrew it in April 2021 after the respondent's solicitors raised objections. She later regretted that decision and brought a second claim for constructive unfair dismissal after resigning in January 2022.
The respondent applied to strike out parts of the second claim, arguing that the claimant was trying to re-litigate matters that had already been decided (or could have been) in the first claim. The tribunal agreed in part, striking out six factual allegations that were identical to those in the first claim. However, four new matters – which arose after the first claim was withdrawn – were allowed to proceed.
What the respondent did right
The respondent acted promptly to identify and challenge the duplication. By applying to strike out on grounds of issue estoppel and the rule in Henderson v Henderson, they prevented the claimant from having a second bite at the cherry on old allegations. This saved time and costs, and ensured finality in litigation.
Why this matters for similar claims
This decision is a reminder that employment tribunal claims are not a dress rehearsal. If you withdraw a claim, you cannot normally resurrect the same allegations later. Anyone considering withdrawing a claim should think carefully and seek advice first. Conversely, respondents should be aware that new matters arising after a previous claim can still be litigated, so a strike-out application may only be partially successful.
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