Drysdale v Department Of Transport (The Maritime And Coastguard Agency) (Practice and Procedure : Withdrawal)

A claimant may withdraw a claim orally at a hearing, and the withdrawal ordinarily ends the proceedings immediately. The Employment Appeal Tribunal may nevertheless set aside a withdrawal where it resulted from an error of law or procedural unfairness by the Employment Tribunal.

An Employment Tribunal need not investigate the health or authority of a duly appointed representative merely because that representative withdraws a claim. It may make such enquiries as appear appropriate to confirm that the representative means what is said. A further duty arises only where the circumstances warrant it, such as where authority is disavowed at the time.

An oral application to dismiss following an oral withdrawal may be decided at the hearing. A party who leaves during an oral costs application, despite being offered the opportunity to respond, is not entitled to a further opportunity to make submissions.

The claimant brought Employment Tribunal proceedings alleging detriment for protected disclosures and automatic unfair dismissal under the Employment Rights Act 1996. At the second day of the final hearing, his wife and lay representative confirmed that she wished to withdraw the claim when it could not be completed that day. The Tribunal dismissed the proceedings on the respondent's oral application and made a costs order of £1,050 after the claimant and his representative left during the costs application.

The claimant appealed, contending that the Tribunal should have investigated his representative's health, mental capacity and authority to withdraw; that dismissal required a written application; and that fairness required a further opportunity to oppose costs. The central issue was whether the withdrawal, dismissal and costs order were affected by an error of law or procedural unfairness.

1. Appeal dismissed. The withdrawal was effective and was not vitiated by an error of law or unfairness on the part of the Employment Tribunal.

2. Under Rule 25, an oral withdrawal takes effect when notified to the Tribunal and brings the proceedings to an end. Following [2007] ICR 24, the Tribunal has no power simply to revive the withdrawn proceedings. However, the Appeal Tribunal may set aside a withdrawal and give consequential directions if it was caused by an error of law or a failure to secure a fair hearing. That was the effect of the unfair and oppressive pressure considered in [2003] IRLR 82.

3. The claimant's representative was a duly appointed lay representative. The claimant had not limited her authority and did not disavow it when she confirmed the withdrawal. There is no general duty to ask a litigant whether he agrees with each decision made by such a representative. The Tribunal was entitled to confirm with the representative that she meant to withdraw. It was not required to enquire further into her authority, her health, or her mental capacity where neither she nor the claimant suggested at the hearing that illness or stress had caused the withdrawal.

4. The Tribunal was also entitled to dismiss the proceedings immediately. The purpose of dismissal is to prevent renewed litigation where the withdrawing party intends to abandon the claim or renewed proceedings would be abusive. On the facts, abandonment was intended and dismissal was inevitable. Rule 25(4), construed consistently with the overriding objective, imposed a time limit for an application to dismiss; it did not bar an oral application made while both parties were present at the hearing.

5. The respondent could apply for costs at the end of the hearing. The claimant and his representative were asked to remain and were given the opportunity to respond orally, but chose to leave while the application was being made. The Tribunal was not obliged to offer a further opportunity for submissions. No error of law in the costs order was shown.

• Employment Appeal Tribunal: dismissed the claimant's appeal against withdrawal, dismissal and a costs order.
• Employment Tribunal (Southampton): on 28 October 2011, treated the claim as withdrawn, dismissed the proceedings on the respondent's application, and ordered the claimant to pay £1,050 in costs.
• Employment Tribunal review: an application for review was refused on 7 December 2011. That judgment was not under appeal.