Khan v Heywood & Middleton Primary Care Trust

Under rule 25 of Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, withdrawal of a whole claim brings those proceedings to an end when notice is received. The claimant cannot later revive the same proceedings. Such a power would require an express provision in the procedural code.

Rule 25(4) instead preserves the respondent’s right to seek dismissal. A dismissal creates the finality associated with cause of action estoppel. A withdrawal without dismissal does not itself create that estoppel, so a fresh claim based on the same facts may in principle be brought, subject to any applicable time limit. The tribunal’s general case-management power cannot override this specific scheme.

Dr Khan presented an employment tribunal claim alleging racial discrimination by the Primary Care Trust. After the Trust disputed the tribunal’s jurisdiction, his solicitors gave written notice withdrawing the claim. Following a change of representation, Dr Khan sought to set aside that notice and continue the original proceedings.

The Employment Tribunal refused to revive the claim, although it also refused the Trust’s application to dismiss it. It ordered Dr Khan to pay the Trust’s costs of his unsuccessful revival application. Rimer J, sitting in the Employment Appeal Tribunal, dismissed Dr Khan’s appeal in UKEAT/0581/05/ZT, reported at [2006] IRLR 345.

The central issue was whether an employment tribunal had jurisdiction to set aside a written notice withdrawing a whole claim under rule 25(2) of the 2004 Regulations.

1. Appeal dismissed unanimously. Wall LJ, with whom Smith LJ and Brooke LJ agreed, held that rule 25(3) of Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 means what it says. A withdrawal of the whole claim brings those particular proceedings to an end when the tribunal receives notice. They are not dormant proceedings capable of later revival by the claimant.
2. The employment tribunal is a statutory tribunal governed by a procedural code. A power to revive a withdrawn claim would need to be expressed in that code. No such power appeared in rule 25 or elsewhere in the Rules. The omitted draft provision, which would expressly have allowed permission to continue a withdrawn claim, reinforced that conclusion.
3. Rule 25(4) did not qualify the finality of withdrawal by allowing the original proceedings to continue if no dismissal order was made. Its purpose was to preserve the respondent’s opportunity to obtain dismissal. Consistently with Verdi[n] v Harrods Ltd and Fraser v Hlmad Ltd, the court held that the new rule remedied the procedural gap identified in Ako. A dismissal gives rise to issue or cause of action estoppel; a withdrawal without a judicial dismissal does not. The latter may therefore permit a fresh claim on the same facts, subject to limitation and any statutory extension of time.
4. Rule 10 could not be used to revive the original claim. Its general case-management power was expressly subject to the following Rules and could not override the specific consequence imposed by rule 25. The reasoning in Vinos v Marks & Spencer plc applied by analogy.
5. There was no error of law in the tribunal chairman’s decision or in the EAT’s dismissal of the appeal. Permission to appeal the associated costs order was also refused, so that order stood.

• Court of Appeal (Civil Division): dismissed Dr Khan’s appeal and upheld the conclusion that the withdrawal could not be set aside: [2006] EWCA Civ 1087.
• Employment Appeal Tribunal: Rimer J dismissed Dr Khan’s appeal from the Employment Tribunal and refused permission to appeal the costs order: UKEAT/0581/05/ZT; [2006] IRLR 345.
• Manchester Employment Tribunal: the chairman refused to set aside the withdrawal notice, refused the respondent’s dismissal application, and made a costs order against Dr Khan in respect of the revival application.