Smith v Greenwich London Borough Council

Abandoning an Employment Tribunal hearing does not, without more, amount to withdrawing the claims. Withdrawal under ET rule 25 must be established by unequivocal words or conduct, and the Tribunal should ask the claimant expressly whether the claims are being withdrawn. A claimant who leaves partway through a hearing may instead fall within ET rule 27(5). The Tribunal may adjourn, dismiss the proceedings, or determine them in the claimant’s absence after considering the available information. Where the claimant’s departure follows what is perceived to be an appealable case-management ruling, an expressed intention to appeal is inconsistent with withdrawal. A costs order founded solely on the withdrawal falls when the withdrawal judgment is set aside.

The claimant brought claims including constructive unfair dismissal and disability discrimination against Greenwich Council and individual employees. His claims were listed for a ten-day merits hearing before an Employment Tribunal. During the third day, after the Tribunal proposed a modified hearing arrangement, he said that the Tribunal had made a decision, stated that he no longer trusted it, said that he was abandoning the hearing, and left.

The Tribunal treated his words and conduct as an oral withdrawal under ET rule 25 and subsequently ordered him to pay £10,000 costs on that basis. The claimant appealed both judgments. The central issue was whether leaving and abandoning the hearing amounted to withdrawing the claims, or whether the Tribunal should have proceeded under ET rule 27(5).

1. Appeals allowed. The withdrawal judgment and consequential costs judgment were set aside.
2. On the proper construction of ET rule 25, the claimant’s words and conduct did not amount to an unequivocal withdrawal. His stated intention to appeal was wholly inconsistent with withdrawing the claims. The Tribunal should have asked expressly whether he was withdrawing them. If he had answered yes, the withdrawal order would have been appropriate.
3. The Tribunal wrongly concluded that ET rule 27 did not apply because the claimant had attended the hearing before leaving. Rule 27(5) does not require the Tribunal to hear the respondent’s evidence. It permits the Tribunal to adjourn, dismiss the proceedings, or dispose of them in the claimant’s absence, having considered information placed before it under rule 27(6). The Tribunal could have adjourned briefly, warned the claimant that failure to return would engage rule 27(5), and then exercised one of the available powers. Roberts v Skelmersdale College [2003] ICR 1127 supported that construction.
4. The costs order was based only on the finding of withdrawal. It therefore fell away, although the respondents’ other costs grounds remained open for determination.
5. The unresolved complaint of bias was not determined because the procedural steps contemplated by the EAT Practice Direction had not been taken. In light of the claimant’s perception of unfairness, and following the approach discussed in Bennett v London Borough of Southwark [2002] ICR 881, the matter was remitted to a fresh Tribunal for a complete rehearing on the merits. The Tribunal was not asked to substitute its own decision.

• Employment Appeal Tribunal: allowed appeals against the Employment Tribunal’s withdrawal judgment promulgated on 13 May 2009 and costs judgment promulgated on 9 September 2009. Both judgments were set aside and the case was remitted to a fresh Tribunal.
• Employment Tribunal: treated the claimant’s departure from the merits hearing as withdrawal of all claims and later ordered him to pay £10,000 costs.