Background:

The claimants were supported by the FDA Union where they brought claims of direct age discrimination in relation to the Civil Service Compensation Scheme and the redundancy payment arising from it.

The issue arising for the Tribunal was that there were already similar claims brought against the scheme which the FDA was aware of.  Those claims were subject to a Case Management Order which also extended to these claims.  This led to a preliminary hearing being heard on justification in the other cases.  The FDA, whilst not making applications or representations, did have legal observers in attendance.  At that preliminary hearing the justification for the age discrimination by the respondents was upheld with the claims being dismissed.  However, the FDA and the claimants in this case decided to continue their claims.   The issue was whether the claims could continue despite the determination made in the similar claims which the FDA were aware of.

Outcome:

The Tribunal, at first instance, struck out of the claims citing that it was an abuse of process.  It was held that the continuation of the case was scandalous, unreasonable or vexatious.   The claimants appealed to the EAT.  The EAT held that the Tribunal had the power to strike out claims on the basis of an abuse of process.   This was on the basis of ensuring finality to litigation and that a party would not be vexed twice by the same matter.   The EAT did hold that there was no presumption that it would be an abuse of process in civil proceedings but considering the knowledge of the Case Management Order being made which was to reduce the prospect of further substantive hearings it was then an abuse of process to continue. Indeed, had the FDA claimants sought to make representations at the original preliminary hearing that would have been accommodated.  The claimants ‘sat on their hands’ as was their right but they could not seek to re-litigate as it would risk repetitive litigation and bring the administration of justice into disrepute.  Appeal dismissed.

Practical Guidance for Employers:

There are a number of actions taken by various parties all arising from the same policy or process especially as it relates to holiday pay or pensions.  For those involved in those actions, this decision of the EAT may be useful.  The EAT makes it clear that an issue cannot be re-litigated when the Tribunal has sought to manage it with a preliminary hearing for some of the claims relating to the same issue.  It would be for those parties to seek to make representations rather than ‘sitting on their hands’ and then seeking to re-litigate at a later point.

https://assets.publishing.service.gov.uk/media/664b1b41b7249a4c6e9d3782/FDA_Claimants_v_HMRC_and_Others__2024__EAT_73.pdf