On 26 May 2023, the President of the Employment Appeal Tribunal (“EAT”), Mrs Justice Eady, handed down judgment in Lycatel Services Limited v Robin Schneider [2023] EAT 81, an appeal concerning the circumstances in which the Employment Tribunal should stay its own proceedings in favour of a determination by the High Court.
The Claimant commenced proceedings in the Employment Tribunal asserting that he was entitled to a bonus of just under £8 million based on an alleged oral variation to his contract. His claim was formulated as an unauthorised deduction from wages. In response, the Respondent brought proceedings in the High Court seeking negative declaratory relief, to the effect that there was no binding oral agreement and that the Claimant had no entitlement to any bonus. The Claimant refused to agree to a stay of the Tribunal claim, asserting that he had a statutory right to pursue that claim and to choose the forum in which he litigated. The Tribunal refused the Respondent’s subsequent application to stay the claim in favour of High Court proceedings. It held that the Tribunal was not “an inadequate forum to determine this claim”, that the Claimant had a statutory right to pursue his claim in the Tribunal and that the Respondent’s application was an impermissible attempt to dictate the forum of the claim.
The EAT overruled that decision. Confirming that the ultimate question is as to where the action could most conveniently and appropriately be tried in all of the circumstances, it held that applied even where, as here, the claims before the Tribunal and the High Court were mirror images of one another. It made clear that there is a distinction between the statutory right to bring a claim in the Tribunal and the right to have that claim determined by the Tribunal, and given the various potentially complex issues of fact and law (those issues being outside the particular expertise of the ET), and the formal nature of proceedings before the High Court, the claim should be determined in the High Court. Although the differing costs regimes was relevant, that factor was neutralised by the Respondent’s offer to apply the Tribunal costs regime if that were the difference on the issue of forum.
The judgment is available to be viewed here.
David Craig KC and Owen Lloyd appeared for the Respondent, Lycatel Services Limited and were instructed by Lewis Silkin.
