Two bites of the legal cherry?

Source: Full case report: (WESTLAW), see also the original tribunal hearing report in the Yorkshire Post containing more detail about the specific allegations: http://www.yorkshirepost.co.uk/news/Black-employee-wins-her-race.1253995.jp

Campbell v. Leeds United Association Football (in liquidation) [2009] EW Misc 4 (EWCC)

The case (heard in Leeds County Court) concerned a claim for psychiatric damages by Yvonne Campbell, a waitress and later banqueting manager at Leeds Utd Football club. Yvonne had earlier won two claims for damages for direct discrimination on the grounds of race, sex, victimisation and harassment at two employment tribunals in 2005 and 2006. She was awarded £5,000 by the first tribunal, and a remedy hearing was directed to be convened for the second tribunal, but in the end was never held (The Schedule of Loss for this second claim included psychiatric loss and loss of earnings and amounted to at least £110,000).

The problem is that in May 2007, Leeds United went into creditor’s voluntary liquidation and no return is therefore expected for unsecured creditors like Mrs Campbell. Although Leeds Utd were insured against claims by employees for personal injuries caused by negligence / breach of statutory duty, they were not insured against employment tribunal claims. The case is therefore Mrs Campbell’s attempt to secure damages via an alternative method. Indeed, the court noted at [11] that it is common ground that the allegations made are the virtually the same as those made before the Tribunal. The only difference is that the court case is based on a breach of regulations 3(1), 3(3), 3(6)(a), 4, 5(1), 5(2), 6, 7, 10 and 13(1) of the Management of Health & Safety at Work Regulations 1999, which led to a foreseeable risk of injury attributable to stress, rather than the Statutory direct discrimination actions argued at the Tribunal.

Although Leeds Utd tried to argue that Mrs Campbell was barred by estoppel from arguing essentially the same points, the Court held that a finding of discrimination was an entirely separate issue from negligence [24]. The court also ruled that Henderson v. Henderson (a principle that a party should not be allowed to reopen old cases to introduce new evidence) did not apply to the Tribunal’s assessment of psychiatric loss as no assessment had in fact taken place [36], and it would amount to a denial of justice if Mrs Campbell’s claim was struck out [37].

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About Kris

Associate Professor in Sports Law, Staffordshire University; British Gymnastics Senior Coach

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