Drysdale v Department of Transport

The Court of Appeal considered whether the Employment Tribunal erred in law by failing to take adequate steps to ensure that the claimant had taken a properly considered decision before his lay representative withdrew his unfair dismissal claim. The court applied the overriding objective in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (including rule 14 and rule 25) and emphasised the wide margin of appreciation afforded to a tribunal in managing hearings and assisting unrepresented or lay-represented parties.

The court held that there was no evidence that the representative was indisposed or that the withdrawal was irrational or involuntary. The tribunal had been aware that the representative and claimant were unlegally qualified, had given allowances (breaks and explanations) during the hearing and had reasonable grounds to conclude the claimant assented to withdrawal. The court therefore found no error of law, no breach of the overriding objective and no unfairness requiring interference.

Background and parties:

• The claimant, Mr Ronald Maclean Drysdale, an employed marine surveyor, pursued detriment and constructive unfair dismissal claims (relying on public interest disclosures under Part IVA and section 103A of the Employment Rights Act 1996).
• Mrs Daniela Drysdale, the claimant’s wife, acted throughout as his lay representative and advocate.

Procedural posture:

• The Employment Tribunal (ET) heard the matter over 17–18 October 2011. On 18 October, Mrs Drysdale announced she wished to withdraw the claim; the ET asked her to confirm, she said yes, counsel for the respondent applied for dismissal and the ET dismissed the claim on withdrawal and indicated it would consider costs. The claimant applied for review which was refused. The Employment Appeal Tribunal (EAT) dismissed the claimant’s appeal on 13 February 2013 (UKEAT/0171/12/LA). Permission to appeal to the Court of Appeal was later granted on a single limited ground by Elias LJ.

Nature of the application and issues:

• The appeal was limited to whether the ET had failed, having regard to the overriding objective and the fact that neither the claimant nor his representative were legally qualified, to take adequate steps to ensure that the withdrawal was a properly considered decision by the claimant.

Evidence and facts considered:

• The court reviewed affidavits and contemporaneous statements from the claimant, his lay representative, respondent’s counsel and the three members of the ET describing the events at the hearing, including timings, demeanour and subsequent conduct in court.

Court’s reasoning and conclusions:

• The court set out relevant principles: tribunals should assist litigants as appropriate but must remain impartial; what assistance is appropriate depends on case-specific circumstances and lies within a wide discretion.
• The ET had no grounds from the material to suspect that Mrs Drysdale was indisposed or that the withdrawal was impulsive, involuntary or irrational. The panel had described her as composed, articulate and in control; both she and the claimant remained in court for minutes afterwards and made comments consistent with assent to withdrawal.
• The court concluded that the ET acted within its margin of appreciation, was not under a duty to interrogate the reasons for withdrawal or to impose a cooling-off period or adjournment, and did not err in law or breach the overriding objective.

Context and implications:

• The judgment reviews authorities on tribunals’ duties to litigants in person or those represented by non-lawyers (including Gee v Shell UK Ltd; Mensah; Adese; Ako) and affirms a restrained approach to appellate intervention in tribunal case management absent obvious unfairness or error.

Appeal dismissed. The Court of Appeal held that the Employment Tribunal did not err in law or fail the overriding objective by accepting the lay representative’s withdrawal of the claim without further interrogation or a cooling-off period; there was no evidence the withdrawal was involuntary, irrational or that the claimant did not assent, and the tribunal acted within its margin of discretion.

Appeal from the Employment Appeal Tribunal (UKEAT/0171/12/LA) which had dismissed the appellant's challenge on 13 February 2013. Permission to appeal to the Court of Appeal was granted on a single limited ground by Elias LJ (renewed oral hearing 3 December 2013). The Court of Appeal dismissed the appeal on 31 July 2014.