Ghoznovi v London Underground Ltd

Where a claimant withdraws an Employment Tribunal claim, a dismissal under rule 25(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 is justified only if the claimant intended to abandon the claim, or permitting fresh proceedings would be an abuse of process.

Withdrawal because the Tribunal lacks jurisdiction, coupled with an express reservation of the right to sue in the proper forum, satisfies neither condition. The claim should therefore remain withdrawn rather than dismissed. Rule 25(4) nevertheless gives the Tribunal power to dismiss a withdrawn claim; the existence of that power is distinct from whether dismissal is just.

The claimant sought a lump-sum payment from a pension scheme following incapacity said to arise from an accident at work. At a pre-hearing review, he withdrew his claims after accepting that the claim against his employer was time-barred and that the second respondent was not his employer.

He expressly reserved his right to pursue the matter in the civil courts. The Employment Judge nevertheless dismissed the claim against the pension scheme under rule 25(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, and later refused a review application seeking to substitute “withdrawn” for “dismissed”.

The appeal concerned whether the dismissal should stand and, separately, whether the Tribunal had power to make it.

1. Appeal allowed on the amended ground. Applying Verdin v Harrods Ltd, the Tribunal had to ask whether the withdrawing claimant intended to abandon the claim and, if not, whether fresh proceedings would be an abuse of process.

2. Neither condition was met. The claimant expressly reserved his right to pursue the claim in the civil courts. He withdrew the Employment Tribunal claim because the Tribunal lacked jurisdiction over a claim against a body which was not his employer. Withdrawal in order to sue in a forum with jurisdiction was not an abuse of process.

3. The Employment Judge therefore ought not to have dismissed the claim against the second respondent. The dismissal order would have prevented proceedings elsewhere by cause-of-action estoppel. It was amended so that the claim was recorded as withdrawn.

4. The original jurisdictional ground failed. Rule 25(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 gave the Tribunal power, on a respondent’s application, to dismiss a claim following withdrawal. Whether it was right to exercise that power was a separate question. The remaining grounds of appeal were dismissed.

• Employment Appeal Tribunal: Appeal allowed. The dismissal of the claim against the Transport for London Pension Scheme was replaced with an order recording withdrawal.
• Employment Tribunal: At a pre-hearing review, Employment Judge Burgher dismissed the withdrawn claim against the second respondent under rule 25(4). A review application was summarily refused.