KB-2023-003510 - [2025] EWHC 1755 (KB)

I now have to deal with item 9 on the Schedule. This relates to paragraph 74 of the Particulars of Claim and it relates to an alleged peremptory revoking of an offer for increased salary and bonus. The Defendants’ case is that this allegation was made to and was considered by the Employment Tribunal and was rejected.

The Defendants rely, first of all, on the sixth bullet point under paragraph 15 of the Tribunal’s judgment, which reads:

“ ... on 14th July 2017, Mr Shah giving the Claimant a purported statement of the terms of his employment on 14th July 2017, that he knew was contrary to what had been agreed and peremptorily revoking the Respondent’s proposal of the Claimant’s outstanding January 2017 pay review, before the Claimant had been able to properly consider the proposal.”

That, again, is the Tribunal’s summary of the nature of the Claimant's case before the Tribunal under the topic of detrimental treatment in relation to the Claimant’s whistleblowing claim before the Tribunal.

The Defendants submit that that was an issue in front of Tribunal and, moreover, that it was dealt with at paragraph 136 of the Tribunal’s judgment. I do not propose to read all of that text, but the Tribunal, in that paragraph, started by considering a process which it said had started with Mr Shah providing draft terms on 8th June 2017, and the Tribunal then went over, amongst other things, documents in July and August, ending with an 8th August 2017 e-mail. The Tribunal concluded at the end of paragraph 136: “The offer was not peremptorily revoked. The claimant was not subjected to a detriment.”

One of the e-mails considered by the Tribunal, which Mr Dowding has drawn to my attention, is an e-mail dated 8 August 2017, and he says that the Tribunal did not deal with that correctly. His submissions appear to me to be contradictory, because, on the one hand, he is saying that this was not something that the Tribunal was called on to deal with at all, and, on the other hand, he is criticising the way they did deal with it. However, I suppose that it is possible to say although the Tribunal shouldn't have dealt with it at all, they nevertheless went on to do so and then got it wrong.

But be that as it may, in my judgment it is absolutely clear this is an attempt to relitigate a matter that has already been decided by the Tribunal.

If there is a suggestion the Tribunal made an error in its approach or, indeed, as at present advised I should have thought a suggestion that it exceeded its proper remit in dealing with an issue that wasn’t properly in front of it, then, in my view, that is a matter that is appropriately addressed by an appeal from the Tribunal’s decision. That appeal will either fail or succeed, but the one thing that is plainly, in my judgment, impermissible and an abuse of process, is to seek to revisit the topic in these proceedings, contending that the Tribunal’s decision is wrong. That appears to me to be a classic example of seeking to relitigate the same issue in a manner which both case law and principle plainly set their face against.

So I have little hesitation in ruling in favour of the Defendants on issue 9 in the Schedule. Paragraph 74 of the Particulars of Claim must be struck out.