Osaghae v United Lincolnshire Hospitals NHS Trust

A tribunal may not dismiss proceedings under a settlement-related stay unless the express condition for dismissal in its order has occurred. Compliance with a settlement agreement does not itself activate an order which made dismissal conditional on the claimant failing to seek restoration.

Under the former Employment Tribunal Rules 2004, a written withdrawal must be assessed objectively. It is effective where the claimant's communications, read as a whole, clearly, unambiguously and unequivocally show that the proceedings are at an end. A later attempt to withdraw that withdrawal does not undo its effect, subject to review or appeal.

The claimant brought claims of unfair dismissal and race discrimination against his former NHS employer. The race discrimination claim was not pursued after a deposit order. At the hearing of the unfair dismissal claim, the parties signed a handwritten agreement and the tribunal stayed the proceedings. Its order provided for dismissal only if the claimant did not apply to restore them by a stated date.

The claimant sought restoration but later sent emails saying that the matter might be closed, describing himself as a former litigant in person, and asking for no further contact. He subsequently sought reinstatement. Employment Judge Maidment dismissed the claim pursuant to the earlier stay order. The claimant appealed. The central issues were whether that order authorised dismissal and whether the emails amounted to an effective withdrawal under rule 25 of the Employment Tribunal Rules 2004.

1. Appeal dismissed. The Employment Judge's stated basis for dismissal was erroneous, but dismissal was nonetheless plainly correct because the claimant had effectively withdrawn the proceedings.

2. The May order was analogous to a Tomlin order. It stayed the claim to permit implementation of the agreement and made dismissal conditional on the claimant's failure to apply to restore the proceedings. The claimant applied on 29 May. The stipulated default therefore did not occur. The order could not be construed as authorising dismissal merely because the respondent had complied with the agreement, and no rule supplied a free-standing power to dismiss on that basis.

3. The absence of a settlement agreement satisfying section 203(1) of the Employment Rights Act 1996 did not, in itself, prevent settlement from ending tribunal proceedings in an appropriate case. May-Deman v University of Greenwich [2005] IRLR 845 illustrated that proposition. But the present dismissal could not rest on the terms of the May order.

4. Under rule 25, the claimant could withdraw in writing to the tribunal. Applying the requirement that abandonment be clear, unambiguous and unequivocal, the emails of 11 July objectively communicated finality. They went beyond declining to attend a case-management discussion: the claimant said the matter might be closed, referred to himself in the past tense as a litigant in person, and requested no further contact. The later request for reinstatement could not reverse that withdrawal.

5. The alleged misrepresentation did not invalidate the withdrawal. The tribunal had found that the parties reached a final agreement, and the asserted non-compliance with section 203(1) had not operated on the claimant's mind when he withdrew. The proceedings ought therefore to have been dismissed under rule 25(4).

• Employment Appeal Tribunal: appeal dismissed. The dismissal was not justified by the tribunal's stay order, but was upheld because the claimant had withdrawn the claim under rule 25(4) of the Employment Tribunal Rules 2004.
• Employment Tribunal: Employment Judge Maidment dismissed the remaining unfair dismissal complaint by a judgment promulgated on 13 August 2012, pursuant to the tribunal's earlier order of 21 May 2012.