The claimant had been off sick since 2004, citing the reason for his absence as arising from a workplace injury caused by failures on the part of management. He was paid sick pay until 2005, and thereafter the respondent did not pay him anything. The claimant brought a claim of unlawful deduction from wages, arguing that there should not have been any aggregation of his sickness absence for sick pay purposes because no account should have been taken of absence due to workplace injury. This claim was eventually settled through ACAS and an order was made dismissing the claim. The claimant then presented another ET1 in which he claimed that sick pay should have been reinstated from the date of the previous order. The ET ruled that the claim could not be heard because essentially he was trying to re-litigate the same issue. The claimant appealed.

The EAT rejected the claimant’s argument which was that as the previous Tribunal would not have been allowed to rule on future payments, only past payments, this new claim was not arguing the same point as the first. The EAT ruled that whilst the wages sought in each claim related to different periods of time, that did not mean that the substance of them was not identical – they were. To allow the issues to be re-litigated would be contrary to rule 25(4).

__________________________

Appeal No. UKEATS/0045/11/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 8 March 2012

Before

THE HONOURABLE LADY SMITH (SITTING ALONE)

MR E M HOLMES (APPELLANT)

GREATER GLASGOW HEALTH BOARD (RESPONDENT)

JUDGMENT

For the Appellant
MR E M HOLMES (The Appellant in person)

For the Respondent
MR C MacNEILL (One of Her Majesty's Counsel)

Instructed by:
NHS Scotland Central Legal Office
Anderson House
Breadalbane Street
Bonnington Road
Edinburgh
EH6 5JR

UNLAWFUL DEDUCTION FROM WAGES

Unlawful deductions from wages. Sick pay. Whether periods of absence due to illness allegedly caused by failures on part of employer counted as sick leave. Claim for period from 9 December 2009. Previous claim on same grounds, for earlier period to 8 December 2009, settled, withdrawn and dismissed. ET rule 25(4). Res iudicata. Appeal from Employment Tribunal's judgment that it had no jurisdiction to hear the second claim dismissed.

1. This is an employee's appeal from a judgment of the Employment Tribunal sitting at Glasgow, Employment Judge Mr R A MacKenzie, registered on 9 June 2011, holding that the Tribunal had no jurisdiction to hear his claim of unlawful deductions from wages. His claim was, accordingly, dismissed.

1. That claim had proceeded on the basis of a form ET1 presented on 6 December 2010.

1. I will, for convenience, continue to refer to parties as Claimant and Respondent.

1. The Claimant represented himself before the Tribunal and before me. The Respondent was represented by Mr McLeod, solicitor, before the Tribunal and by Mr MacNeill QC, before me.

1. The Claimant is a hospital porter and began working for the Respondent on 7 June 1997. He has been off work, on sick leave, since 17 November 2004.

Previous claim

1. In 2008, the Claimant presented a claim to the Employment Tribunal (case 114120/2008) in which he sought to recover unpaid wages. He alleged that he was entitled to 'sick pay', being the whole sums that he would have earned if he had been at work throughout the period since 17 November 2004.

1. In further and better particulars provided by the Claimant he stated:

"This claim covers a period beginning 1st January 2004 and is still ongoing; this is divided into two sections

1. Clerical error in the wages received …

2. Deductions that should not have been made to the wages received (1st October 2004 up to 16th November 2005) and deductions claimed to have been made under Sick pay Policy & Procedures and were a detriment I should not have suffered.

…

…

Sick pay will be what I would have earned if at work

Disciplinary Policy & Procedure

4.2.3.1 If an employee is suspended pending an investigation, the suspension will be with full pay.

Employee Handbook. Terms and Conditions Sickness Absence

14.4 ….Sick pay is calculated on the basis of what the individual would have received had he/she been at work.

Reduction of pay to half for 6 months before 17th November 2005 and to zero pay from 17th November 2005 this detriment should not have happened.

…."

and:

"To prevent detriment…a status quo should have been put into effect and full sick pay continued.

In calculating the rate of sick pay a Protected Disclosure of actual injury to health at work and safety at work is calculated according to Employee Handbook, Terms and Conditions 14.6

In aggregating periods of absence due to illness no account will be taken of:

* Injuries or diseases sustained to members of staff in the actual discharge of their duties through no fault of their own.

I was carrying out my duties in applying the employers Policy & Procedure as required by my Contract of Employment. I was not at fault …

…

I became recognisably ill by non-physical attacks on me by management on 1st October 2004.

...

...

Sick leave did not begin until 17th November 2004

...

Sick pay is "what would be earned if at work"

...

Summary or Losses

...

6mths half pay June – Nov 2005

Full pay since Nov 2005..

...

For period up to Nov 2008 this amounts to £57246.10 and continues to accumulate."

1. The Respondents defended the claim; they responded that the Claimant was not entitled to the payments sought. He had received his contractual sick pay (full pay for 6 months followed by half pay for six months) and was not entitled to any further sums.

1. The Claimant subsequently withdrew his claim; he had agreed settlement terms with the Respondent on 8 December 2009. The Secretary of the Employment Tribunals accordingly notified the Respondents. They applied in writing to the Employment Tribunal to have the claim dismissed in accordance with rule 25(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. On 28 May 2010, the Employment Tribunal issued the following judgment in response to the Respondent's application:

"The claim is dismissed under Rule 25(4) of the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (the Employment Tribunal Rules of Procedure 2004)."

1. Review of that judgment was not sought nor was it appealed against.

Present claim

1. On 6 December 2010, the Claimant presented another form ET1 in which he claims that he is owed sick pay; it should, he asserts, have been reinstated on 9 December 2009. He avers that his absence from work is due to workplace injury and refers to the above provisions of the NHS handbook which state that in aggregating periods of sick pay due to ill health, no account will be taken of workplace injury. In particular, he avers:

"5.2 NHS terms and conditions of service handbook section 14.9 reinstate sick pay in specified conditions – I meet all these conditions.

In addition section 14.6 says that in aggregating period of sick pay due to ill health no account will be taken of workplace injury.

I am on sick leave for work related stress caused by workplace bullying and managements failure to address it. Therefore I should have aggregated zero sick leave and be entitled to full sick pay which is equivalent to full wages…

6.1 …Because my employer refuses to address the cause of my ill health I am now in my 7th year of sick leave. I ask that the Tribunal interprets how sick pay should be determined in these circumstances; my employer refuses to discuss this. I believe I should receive full sick pay which from 9 Dec 2009 to date is £17527.79."

1. Regarding his previous claim, the Claimant avers (in section 5.2):

"I made a previous complaint about withheld wages which was settled on 8th Dec 2009. My wages (sick pay) should have resumed on 9th Dec 2009, they did not.

The employer was fully aware of the Term in my contract that I claimed wages under, but refused to discuss or apply it, all formal complaints were ignored. It was taken that he would continue to ignore renewed complaints. However as this is a new claim, from 9th Dec to date, I tried to discuss the issue at a meeting in March 2010 with a manager."

1. The Respondent lodged a form ET3 in which they state:

"The Claimant has previously raised a claim before the Employment Tribunal about precisely this matter and that was resolved through negotiation through ACAS. On application by the Respondents the Claim, case no: 114120/2008, was dismissed by judgment dated 28 May 2010. Accordingly, the claim has been settled and cannot be raised again, having been dismissed."

1. A claim in respect of non payment of wages due may be presented to an employment tribunal as a claim for unlawful deduction from wages, under section 23(1)(a) of Employment Rights Act 1996. If the claim is well founded, an employment tribunal is empowered, in terms of section 24, both to make a declaration to that effect and to order the employer to pay the wages that should have been paid previously. The power to order payment relates only to past wages. The tribunal cannot order payment in respect of future wages. If, however, there is an ongoing basis for the claim, the tribunal can cover that by making the appropriate declarator regarding the claimant's entitlements.

1. Rule 25(4) of the Employment Tribunal Rules provides:

"Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed….If the respondent's application is granted and the proceedings are dismissed, the claimant may not commence a further claim against the respondent for the same, or substantially the same, cause of action….."

1. Thus, once an Employment Tribunal claim has been dismissed, it is not open to the claimant to revive that claim or to present a fresh claim on the same basis¹.

1. Rule 25 encapsulates the principle which, in Scots law, is referred to as res iudicata. That principle relates to an important public policy objective that parties ought not to be allowed to re-litigate the same issue repeatedly². As it was put by Lord Carmont in the case of Esso Petroleum Company Limited v Law³:

"It is contrary to public policy, as has been said, that a man should be vexed twice for the same cause."⁴

1. It is long established and the circumstances in which it applies were conveniently summarised by Sheriff MacPhail (as he then was) in McPhee v Heatherwick⁵:

1. The prior determination was made by a competent tribunal.

1. The prior determination was pronounced in foro contestiosio.

1. The subject matter of the two actions must be the same.

1. The media concludendi in the two actions were the same.

1. The parties to the second action must be identical with or representative of the parties to the first action.

1. There is no doubt that points 1, 2 and 5 are satisfied in the present case. What about points 3 and 4? That requires asking what was litigated and what was decided, looking at the essential substance of the two claims6. If, in the second claim, the Claimant seeks to litigate essentially the same complaint as was disposed of by the order dismissing the first claim, the principle applies and the second claim must be dismissed.

1. Accordingly, the task for an employment tribunal which is faced with a defence such as that in the present case is to examine the claimant's claim to determine whether or not he is seeking to litigate essentially the same complaint as his earlier one. That determination is one which falls to be made on the basis of the written pleadings – that required, in this case, comparing the first ET1 and the further and better particulars added to it, with the second ET1.

1. Whilst brevity in written judgments is commendable, the bare bones require some flesh and the written reasons in this case (which were issued more than three months after the hearing) unfortunately come close to being skeletal. Having observed that rule 25(4) of the Employment Tribunal Rules applied, the Employment Judge stated:

"11. Both the present claim and the claim made by the claimant in 2008 are in respect of the respondents' alleged failure to pay the claimant sick pay from 17 November 2005. In the judgment dated 28 May 2010 (production 4) the tribunal determined the respondents had no liability to pay sick pay to the claimant after 17 November 2005.

12. Rule 25(4) provides that the claimant is not permitted to raise a further claim arising from the same cause of action. The tribunal has no jurisdiction to consider the claimant's claim."

The Tribunal's judgment of 28 May 2010 did not in fact expressly hold that the Respondents had no liability to pay sick pay to the Claimant after 17 November 2005 but insofar as the Employment Judge meant to indicate that that was the effect of the judgment, it is probably an accurate statement.

Claimant's submissions

1. Mr Holmes submitted that the present claim was not for the same wages as he had sought in his first claim. It was a new action. The employment tribunal can hear claims for wages that have been deducted in the past but for future wages. No employee has a right to future wages. He accepted that his first claim was settled on 8 December 2009 but the first Tribunal could not have heard any issue about future wages. He was not claiming the same money as he had been claiming in his first claim. The Respondents' decision to deduct wages happened each month. He had not agreed to it. They had given him no explanation for doing so. He had had no paperwork since 2004. He had asked for information but his requests had been ignored. The authorities referred to by counsel for the Respondent were not in point. The case of Barber related to redundancy and Primary Healthcare Centres (Broadford) Limited v Ravanagave⁷ was about a lease and related to tenancy law. The Respondents were, in effect, saying that they could deduct wages and there was nothing he could do about it other than resign if he did not like it. Overall the question was whether he was claiming for the same deductions.

Respondent's submissions

1. Mr MacNeill QC submitted that the appeal should be refused. Rule 25(4) operated so as

to prevent the claim going any further. Although the Tribunal's reasoning was thin, the case was correctly decided. The second claim was substantially the same claim as the first one. The Claimant had, in his first claim, provided a detailed account of alleged misbehaviour by colleagues and failure by management to deal with the matter, all causing him to suffer ill health. That meant, he said, that his sickness absence should not have been counted as sick leave and he should have received full wages. That case was settled so there was no need for the Tribunal to determine whether or not the complaint was well founded.

1. In his second claim, the Claimant raised the same issue: again he raised an allegation that there should not have been any aggregation of his sickness absence for sick pay purposes because no account should have been taken of absence due to workplace injury. Whilst he did not provide the same details of the circumstances of the alleged workplace injury as in his first claim it was plain that if the claim had gone ahead and the Respondents had sought further and better particulars, they would have been identical to those relied on in the first claim. If one asked whether this was a claim for the same or substantially the same cause of action, the answer was, plainly, yes.

1. Mr MacNeill considered two scenarios. First, if the first claim had gone to a full hearing and succeeded, the Tribunal's findings (which would have been both a declarator and an order for payment) would have been binding regarding the issue of liability to pay. Secondly, if the claim had gone to a full hearing and had not succeeded, the Tribunal's declarator would, again, have been binding. The Claimant seemed, however, to be saying that in that latter event he could, nonetheless, start again in respect of a later period. That could not be right – it would mean there was a "win, win" situation.

1. Mr MacNeill submitted that the principle of res iudicata was relevant and referred to the cases of Downing, Staffordshire, Esso Petroleum, and Primary Healthcare Centres (Broadford) Ltd (for Lord Hodge's summary of the law relating to res iudicata). He also referred to the case of Smith v Sabre Insurance Co Ltd*⁸ as being an up to date example of the application of the principle. The courts and tribunals had to look at the substance of what had been decided. The substance of both these claims was the same namely that they were claims that periods of absence due to illness caused by failures on the part of the respondents ought not to be counted as sickness absence for sick pay purposes. The issue had been raised. It had been settled. That was an end of matters. If the Claimant's approach was correct then the issue would be litigated ad infinitum.*

1. Whilst the Employment Judge did not expressly carry out a comparison of the two claims, it is clear that had he done so, the only conclusion open to him would have been that the Claimant was seeking to re-litigate an issue which had already been disposed of by the Tribunal's order of 28 May 2010. In both claims the issues raised by the Claimant were whether or not his absence from work was due to illness arising from workplace injury caused by failures on the part of management and if so, whether or not he was entitled to be paid full wages during that absence. Whilst the wages sought in each claim relate to different periods of time, that does not mean that the substance of them is not identical. It plainly is.

1. In these circumstances, the fact of the disposal of the first claim by an order dismissing it is conclusive of the issues raised by the Claimant. They cannot be re-litigated – to do so would be contrary to rule 25(4) and fly in the face of the well established principle of res iudicata.

1. I should add that none of this is to say that had the Claimant seen the first claim through to a full hearing and been successful he would not, in the unlikely event of the Respondents not resuming payment of his wages, have had a remedy. He would have been able to raise a fresh claim which would not have fallen foul of rule 25(4) because the issue would then have been not whether he was entitled to the wages in question by reason of the cause of his illness but whether he was entitled to them by reason of it having been declared that the Respondents were bound to pay them.

1. In these circumstances, I will pronounce an order upholding the judgment of the Employment Tribunal and dismissing the appeal.

1 See: Staffordshire County Council v Barber [1996] ICR 379; Lennon v Birmingham City Council [2001] IRLR 826; Dattani v Trio Supermarkets Ltd [1998] ICR 884; Khan v Heywood & Middleton Primary Care Trust [2007] ICR 24; British Association for Shooting and Conservation v Cokayne [2008] ICR 185; Downing Private Nursing Homes v McAllister UKEATS/ 0040/ 08/ BI .

2 See: Grahame v Secretary of State for Scotland (1951) SC 387, per the Lord President.

3 1956 SC 33.

4 At p.38.

5 1977 SLT (Sh Ct) 46. Approved by Lord Macfadyen in Irving v Hiddleston 1998 SC 759 at p. 770 F- H.

6 Glasgow and South Western Railway Co v Boyd & Forrest 1918 SC(HL) 14; 1918 1SLT 10; Edinburgh & District Water Trustees v Clippens Oil Co Ltd (1899) 1F 899; (1899) 7SLT 36; Phosphate Sewage Co v Molleson (1878) 5R 1125; (1879) 6R(HL) 113.

7 (2009) SLT 673

8 2012 CSOH 14