Wirral University Teaching Hospitals NHS Foundation Trust v Moriarty: Henderson abuse and withdrawn claims

The Employment Appeal Tribunal has dismissed an appeal by Wirral University Teaching Hospitals NHS Foundation Trust, upholding a refusal to strike out four factual particulars in a constructive unfair dismissal claim on the grounds of Henderson v Henderson abuse of process.

The claimant, a nurse at Arrowe Park Hospital, sustained a significant electric shock during the course of her employment in October 2016. She contended that the incident was never properly reported or investigated and that her subsequent attempts to pursue the matter resulted in a sustained course of harassment and victimisation. Following her resignation in January 2022, she brought a claim for constructive unfair dismissal, relying on a course of conduct dating back to the original incident.

The trust sought to strike out ten factual particulars underpinning the claim, arguing that as they predated or coincided with an earlier tribunal claim — withdrawn by the claimant in June 2021 before any case management hearing took place — she was precluded from relying on them now. The tribunal acceded to the application in respect of six particulars on issue estoppel grounds, but declined to strike out particulars 2, 7, 8 and 10, none of which had appeared in the original proceedings.

The trust appealed on three grounds. It contended that the employment judge had improperly taken into account the effect that striking out those particulars would have on the claimant's overall prospects of success; that the judge had misunderstood the submission that the claimant had always sought to advance her "whole story" and was therefore obliged to have included all relevant facts in the earlier claim; and that there was an internal inconsistency in the reasons.

Sitting as Deputy Judge of the High Court, Sarah Crowther KC rejected all three grounds and dismissed the appeal.

On the first ground, the court found that reading the reasons as a whole, the judge had not been improperly influenced by the claimant's trial prospects. The references to the limited scope of what would remain if the particulars were struck out reflected submissions made by the claimant's McKenzie Friend, and the judge's conclusions properly rested on two material considerations: the four particulars had never been the subject of any prior litigation, and a trial on issues 11 to 13 would in any event be required. Both were legitimate factors in a broad, merits-based Henderson assessment.

On the second ground, the court was satisfied that the judge had expressly considered and weighed the "whole story" argument, acknowledging that the earlier claim had presented a narrative continuum from October 2016 onwards. The judge found that consideration pointed in favour of a finding of abuse, but concluded that it was outweighed by other factors — including the early stage at which the first claim was withdrawn and the fact that the claimant had been acting in person throughout. Disagreement with the weight attached to a submission does not disclose an error of law.

On the alleged inconsistency, the court held that the two passages under challenge addressed distinct issues. The finding that the facts could have been mentioned in the first claim was consistent with finding, separately, that nothing could meaningfully be said to have "should" have been raised in proceedings whose scope was never defined. The first claim had been withdrawn before any list of issues was settled, leaving the tribunal without the necessary foundation to assess the degree to which the trust had been "twice vexed" or the claimant unreasonable in her omissions.

The judgement confirms the importance of scrutinising the procedural history carefully in Henderson applications. Where a prior claim is withdrawn at the earliest possible stage — before case management, without an agreed list of issues — it becomes significantly harder to establish that a subsequent claim is abusive, particularly where the claimant was unrepresented. The court reiterated that it is wrong in principle to treat the mere fact that something could have been raised in earlier proceedings as sufficient, without more, to establish abuse.