Out of time race claim does not prevent negligence proceedings

In Nayif v High Commission of Brunei Darussalam, the Court of Appeal has determined that a Claimant may bring negligence proceedings based on facts which had been brought as a discrimination claim, but which had been rejected by an Employment Tribunal as being out of time. Although issue estoppel might arise where the Tribunal had considered the substantive issues in the claim, the Court of Appeal considered this did not arise where the decision to reject the claim at the outset had been based on a jurisdictional issue.

The Claimant had tried to issue claims for race discrimination in the Employment Tribunal but these had been rejected as being out of time. His permission to appeal to the EAT was refused. He therefore decided to issue proceedings in the High Court for negligence and breach of contract in respect of the same facts, out of which he had suffered psychiatric injury. The High Court accepted the Respondent’s argument of issue estoppel and struck out the claim, whereupon the Claimant appealed to the Court of Appeal. The Court of Appeal accepted the argument that, because the claims had been rejected in the Tribunal on the basis of jurisdiction only, there had been no determination of the factual situation in another forum, and therefore the claim for negligence could proceed.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.