Action estoppel

Ako v Rothschild Asset Management Ltd and another (CA [2002] 2 All ER 693)

The complainant brought a complaint to an employment tribunal of unfair dismissal and race discrimination against her former employer. Shortly afterwards she wrote to the tribunal to withdraw her application, which the chairman, who heard no evidence or argument and was not even sitting in the open tribunal room when he made the order, marked ‘dismissed on withdrawal by the applicant’. Within a week the complainant presented a fresh application, repeating the same allegations but also making allegations against a bank which she believed to be the transferee of the undertaking of the part of the employer’s business in which she had worked. On the employer’s application to strike out under the principles of estoppel and res judicata, the claim was struck out, even though the tribunal found the complainant had never intended to abandon her claim and that at all material times she had intended to replace the withdrawn application with one naming both the employer and the bank. The complainant’s appeal to the Employment Appeal Tribunal was allowed and the employer appealed to the Court of Appeal.