Drysdale v The Department of Transport (The Maritime And Coastguard Agency)

An employment tribunal should give a litigant the assistance appropriate to the circumstances, taking account of representation, legal qualification, competence and understanding. Its overriding duty remains to act impartially and avoid injustice to either party.

The tribunal has a wide margin of judgment in deciding how to assist or intervene. Appellate intervention is justified only by conduct which no reasonable tribunal, properly applying the overriding objective, would have adopted and which treated the litigant unfairly.

A tribunal ordinarily need not investigate why a represented claimant withdraws a claim, seek the claimant’s personal confirmation, or impose a cooling-off period. Direct confirmation may be required where there is a clear communication failure or dispute with the representative, or possibly a manifestly irrational decision.

The appellant brought employment tribunal proceedings alleging constructive unfair dismissal because he had made protected disclosures. His wife acted throughout as his lay representative. On the second day of the substantive hearing, she stated that she wished to withdraw the claim after learning that the part-heard hearing could not resume for four months. She confirmed the withdrawal when questioned by the tribunal. The tribunal dismissed the claim on the respondent’s application.

The tribunal refused a review. The Employment Appeal Tribunal subsequently dismissed the appellant’s appeal in UKEAT/0171/12/LA. The Court of Appeal granted permission on the sole question whether, having regard to the overriding objective and the absence of legally qualified representation, the tribunal failed to take adequate steps to ensure that the decision to withdraw was properly considered.

1. Appeal dismissed. The employment tribunal had neither erred in law nor acted unfairly or contrary to the overriding objective when it accepted the withdrawal and dismissed the claim.

2. The assistance appropriate for a litigant depends upon the circumstances. Relevant matters include whether the litigant is represented, whether the representative is legally qualified, and the apparent competence and understanding of the litigant and representative. Assistance remains constrained by the tribunal’s obligation to be, and appear to be, impartial and to avoid injustice to either party. The tribunal has a wide margin of judgment. An appellate court will ordinarily intervene only where an act or omission was one which no reasonable tribunal, properly applying the overriding objective, would have adopted and it resulted in unfair treatment.

3. Nothing apparent at the hearing should have alerted the tribunal that the representative’s diabetes, fatigue, anger or frustration had impaired her judgment. She remained composed, articulate and in control, and neither she nor the appellant said that she was unwell. Her lack of legal qualification carried less weight because her conduct demonstrated intelligence, clarity and procedural competence.

4. The tribunal reasonably concluded that the appellant understood and assented to his chosen representative’s action. He did not demur when the tribunal looked to him, remained silent for about five minutes afterwards, and made valedictory remarks when leaving. A tribunal should ordinarily seek personal confirmation only where there is a clear indication of a dispute or communication failure between the litigant and representative, or possibly where the representative makes a manifestly inexplicable and irrational decision.

5. Except in exceptional circumstances, a tribunal has no obligation to investigate the reasons for withdrawal. Such an inquiry may invite disclosure of privileged assessments of the claim, prejudice the opposing party, or encourage pursuit of an unmeritorious case. Neither the overriding objective nor another rule required an unsolicited cooling-off period or adjournment. Whether reflection should be permitted was a matter within the tribunal’s discretion, and the circumstances supplied no reason to suspect an ill-considered or irrational withdrawal.

Christopher Clarke LJ and Arden LJ agreed with Barling J.

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld the Employment Appeal Tribunal’s decision: [2014] EWCA Civ 1083.

2. Employment Appeal Tribunal: Dismissed the appeal from the employment tribunal in UKEAT/0171/12/LA.

3. Employment Tribunal: Dismissed the constructive unfair dismissal claim following its oral withdrawal and subsequently refused the appellant’s application for review.