Thomas Cook Airline Services Ltd v Wolstenholme

On an application under Employment Tribunals Rules of Procedure rule 25(4), withdrawal of Employment Tribunal proceedings does not automatically justify their dismissal merely because the claimant intended to abandon that particular claim. The decisive issue is whether proposed fresh proceedings would be an abuse of process.

It may be permissible to withdraw a contractual claim from the Employment Tribunal and pursue a High Court claim where the tribunal's monetary jurisdiction is insufficient, developments after the original claim require a different claim, and the later proceedings proceed on a materially different factual basis. The court must consider the practical estoppel consequences of dismissing the withdrawn proceedings.

The respondent, acting as personal representative of a deceased pilot, had withdrawn Employment Tribunal proceedings alleging unfair and wrongful dismissal. She then intimated, and later issued, High Court proceedings for contractual sick pay and a death-in-service payment.

The employer applied under rule 25(4) for the withdrawn Tribunal proceedings to be dismissed. Employment Judge Wardle refused the application. The employer appealed to the Employment Appeal Tribunal, contending that the claimant had abandoned the Tribunal claim and sought improperly to resurrect it in the High Court.

The central issue was whether the proposed High Court proceedings, insofar as they concerned breach of contract, would be an abuse of process such that dismissal of the withdrawn Tribunal proceedings was just.

1. Appeal dismissed. The Employment Judge was entitled to refuse dismissal of the withdrawn proceedings under rule 25(4).

2. The questions drawn from Verdin v Harrods Ltd [2006] IRLR 348 require attention to both whether the withdrawing party intends to abandon the Tribunal claim and whether fresh proceedings would be an abuse of process. The passage should not be read mechanically. Even if the claimant intended to abandon the Employment Tribunal claim, dismissal was not just where the proposed High Court proceedings would not be abusive.

3. The Judge permissibly concluded that the High Court proceedings were not an abuse. The claimant could not obtain the substantial contractual sick-pay and death-in-service claims in the Employment Tribunal because of its £25,000 contractual jurisdictional limit. She had not obtained a Tribunal judgment to the statutory maximum and then sought the balance elsewhere.

4. Further, although both proceedings arose from a common factual matrix, the High Court claim was required by developments after the original claim, particularly the employee's death, and proceeded on a materially different basis. The Tribunal claim alleged dismissal in July 2009; the High Court claim alleged that employment continued until death in May 2010.

5. Dismissal would have made it at least arguable that rule 25(4) barred the High Court claims through issue estoppel. By refusing dismissal, the Tribunal instead precluded the employer from advancing in the High Court that those claims were an abuse of process. That was the proper outcome.

• Employment Appeal Tribunal: the employer's appeal was dismissed; the refusal to dismiss the withdrawn proceedings under rule 25(4) was upheld.
• Employment Tribunal (Manchester): Employment Judge Wardle refused the employer's application under rule 25(4) to dismiss the withdrawn claim, in a judgment promulgated on 23 April 2012.