Fresh redundancy claim could not proceed

Barber v Staffordshire County Council; Court of Appeal (Lord Justice Neill, Lord Justice Auld and Sir Iain Glidewell); 26 January 1996

A woman who had been dismissed by the same employer from two concurrent part-time contracts, neither of which on its own involved sufficient working hours per week to meet the threshold then applicable under UK law to entitle her to claim for redundancy or unfair dismissal, and who, on being advised that she could not aggregate the hours worked under the contracts in order to meet that threshold, had then withdrawn her claim, which had then been formally dismissed by the industrial tribunal, could not subsequently bring a fresh claim against the employer on the ground that, under European anti-discrimination law, the weekly working hours threshold should not apply.

The fact that the tribunal's decision was not a reasoned adjudication but simply the record of the withdrawal of her claim did not prevent the application of the principles of "res judicata".

The Court of Appeal dismissed an appeal by Mary Andra Roberta Barber and affirmed the decision of the Employment Appeal Tribunal on 30 October 1995, allowing an appeal by Staffordshire County Council and reversing an industrial tribunal's interlocutory decision to allow her claim to proceed.

James Goudie QC (Bindman & Ptrs) for Mrs Barber; T. Brendan Hegarty QC and Joanna Connolly (David Wright, Staffordshire) for the council.

Lord Justice Neill said that after her dismissal in 1992 from the two part-time teaching contracts with which her complaint was concerned, Mrs Barber was initially advised by her union that she could aggregate the hours worked under these two contracts, together with a third from which she had not then been dismissed, in order to meet the statutory condition for bringing a claim for redundancy pay. But when her representative became aware of the House of Lords' decision, in Surrey County Council v Lewis [1988] AC 323, that such aggregation was impermissible, Mrs Barber withdrew her claim, which was formally dismissed by the industrial tribunal.

Following the House of Lords' decision, in R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1 at 31, that the provisions of UK law restricting redundancy and unfair dismissal claims by part-time workers was contrary to European anti-discrimination law (see Biggs v Somerset, Law Report 1 February 1996), Mrs Barber brought a fresh claim.

The council resisted the claim on the ground that it was res judicata, but the tribunal concluded that, while Mrs Barber did not have and never had had a claim directly under the provisions of the Employment Protection (Consolidation) Act 1978 for unfair dismissal or redundancy pay, she could proceed in separate and distinct litigation under European law.

On appeal, the Employment Appeal Tribunal, following its own decision in Biggs v Somerset [1995] ICR 811, concluded that it was not possible for her to bring redundancy and unfair dismissal claims as causes of action under EC law, and that in the absence of exceptional circumstances the principles of cause of action estoppel and issue estoppel applied.

Article 119 of the EEC Treaty did not confer any right to a redundancy payment or compensation for unfair dismissal; its provisions were directed to ensuring that men and women received equal pay for equal work. Mrs Barber could not therefore rely on article 119 to found a cause of action; she could only rely on it to disapply any barriers to a claim which were incompatible with EC law.

It was argued that the original tribunal's decision dismissing her claim, though theoretically an exercise of discretion, was in effect a purely administrative act.

But there was nothing in the principles of cause of action or issue estoppel which stipulated that they could only apply in cases where a reasoned decision had been made in the earlier litigation. The order made by the original tribunal was a judicial decision and not a mere administrative act.

Lord Justice Auld and Sir Iain Glidewell agreed.

Paul Magrath, Barrister