Smyth v London General Transport Services Ltd

A withdrawal of part of an originating application is governed by Rule 13(2)(a) of the Employment Tribunal Rules 1993, not the notice procedure in Rule 13(3), which concerns strike-out orders under Rule 13(2)(d)–(f). An oral opportunity to show cause may satisfy the procedural safeguard. A review is not justified by a litigant’s post-hearing complaint about a representative where the alleged new document was already read to the tribunal. An incorrect address for service does not warrant review without resulting prejudice. The Employment Tribunal Regulations 2001 do not retrospectively govern conduct before commencement. Permission to appeal should be refused where there is no real prospect of success and no other compelling reason.

The applicant, a bus driver dismissed on grounds of capacity, brought claims for unfair and wrongful dismissal. The Employment Tribunal recorded the wrongful dismissal complaint as withdrawn and rejected the unfair dismissal claim. The applicant later alleged that his union representative had mishandled written submissions, sought a review, and presented a second wrongful dismissal application. The Tribunal refused the review and struck out the second claim. The Employment Appeal Tribunal examined the evidence, concluded that the withdrawal had been made with consent, and dismissed the appeal at a preliminary hearing. The applicant then sought permission to appeal, challenging the withdrawal, the review decisions, service of the Tribunal’s decision, and reliance on the 2001 Regulations.

Lord Justice Peter Gibson dismissed the application for permission to appeal.

1. Withdrawal and notice. Rule 13(3) of the Employment Tribunal Rules 1993 applied only to orders under Rule 13(2)(d), (e) and (f). It did not apply where an applicant had withdrawn part of an originating application under Rule 13(2)(a). In any event, the rule’s requirement could have been satisfied by an oral opportunity to show cause. The applicant’s representative had that opportunity and agreed to the withdrawal with the applicant’s consent.
2. Review. The material relied upon was not new evidence within Rule 11(1)(d), because the applicant’s Document A had been read to the Tribunal and Document B had also been left with it. The interests-of-justice provision in Rule 11(1)(e) did not require a review merely because the applicant later complained about his chosen representative.
3. Service and prejudice. Even assuming that the decision had been sent to the wrong address, that error caused no demonstrated prejudice. The Tribunal had also concluded that the review application had no reasonable prospect of success.
4. 2001 Regulations. Regulation 10 of the Employment Tribunal Regulations 2001 could not retrospectively govern conduct by the Tribunal Chairman in 1999. Regulation 14 did not alter that conclusion. Even if Regulation 10 were considered, no breach of the overriding objective was shown.
5. The applicant had shown neither a real prospect of success nor another compelling reason for an appeal to proceed. Application dismissed.

• Court of Appeal (Civil Division) — On 13 November 2001, dismissed the application for permission to appeal.
• Employment Appeal Tribunal — On 15 June 2001, dismissed the applicant’s appeal at a preliminary hearing, concluding that the wrongful dismissal complaint had been withdrawn and that no review grounds existed.
• Employment Tribunal — Rejected the unfair dismissal claim on 24 September 1999, recorded the wrongful dismissal complaint as withdrawn, struck out a later wrongful dismissal application on 10 November 1999, and refused a review on 17 November 1999.