Segor v Goodrich Actuation Systems Ltd

An Employment Tribunal may accept a party’s withdrawal or concession only where it is clear, unambiguous and unequivocal. It must take particular care where the point is central to the claim and the party is self-represented or represented by a lay representative. The Tribunal must ensure that the party understands the significance and consequences of abandoning the point.

Where the record reveals confusion about the case being advanced, it cannot safely establish a valid abandonment. The Tribunal should pause, clarify the party’s position and, where necessary, record the agreed formulation in writing.

The claimant, a French woman of black Afro-Caribbean ethnicity, alleged race, nationality and sex discrimination by her employer. Most claims were dismissed by the Birmingham Employment Tribunal on 16 June 2010. One issue remained: the employer admitted that it had not appointed her to a military project-management role because she was French, and contended that United States arms-control requirements and related agreements provided a defence.

At a further hearing, the Employment Tribunal treated the claimant’s lay representative as having abandoned the contention that reliance on those requirements was itself unlawful discrimination. It dismissed the remaining claim and later awarded the employer costs. The claimant appealed, principally contending that there had been no clear abandonment.

1. Appeal allowed. The Employment Tribunal erred in treating the claimant as having abandoned the part of her claim which challenged reliance on the arms-control requirements and related agreements.

2. A concession or withdrawal cannot properly be accepted unless it is clear, unambiguous and unequivocal. A Tribunal must exercise particular care where a litigant is unrepresented or has a lay representative, and where the point is central and important. It must ensure that the litigant wishes to abandon the point, understands its significance and appreciates the possible consequences. If necessary, the precise case being advanced should be reduced to writing and agreed at the hearing.

3. The material before the Employment Tribunal showed continuing submissions about the possible statutory defence under section 41(1) of the Race Relations Act 1976. It also showed that the Employment Judge was unclear how the claimant put her case. Those circumstances were inconsistent with a clear, unambiguous and unequivocal abandonment. The court did not determine whether the employer could establish a defence, or whether the Tribunal would have had to decide the discrimination issue despite any concession.

4. The costs award could not stand. It had partly rested on the supposed concession, and two further grounds could not be supported because the Employment Tribunal had previously found sufficient material to reverse the burden of proof and had treated the complaints as part of a continuing series. The possibility of costs arising from other conduct remained for the Tribunal.

5. The case was remitted to the same Employment Tribunal, if administratively convenient, to determine the unresolved defence and associated issues.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, set aside the costs award and remitted the unresolved issue to the same Employment Tribunal.
• Employment Tribunal, Birmingham: Dismissed most discrimination claims on 16 June 2010. At a further hearing it treated the remaining claim as partly abandoned, dismissed it and awarded costs to the employer.