Denteh v South London and Maudsley NHS Foundation Trust

Where a claimant withdraws proceedings at a hearing, a respondent may make an oral application for dismissal under rule 25(4) of the Employment Tribunals Rules 2004. The writing requirement imposes a time limit for the application; it does not prevent an application being made orally while the parties are before the tribunal.

The tribunal must exercise its discretion judicially. Dismissal is generally appropriate where withdrawal amounts to abandonment or any attempt to revive the same or substantially the same cause of action would constitute an abuse of process. Requiring a further written application and hearing in such circumstances would conflict with the overriding objective.

The appellants had brought claims for unfair dismissal and race discrimination. At a case management discussion they withdrew the race discrimination claims, and the Employment Tribunal dismissed them following an oral application by the respondent.

The appellants later presented fresh race discrimination claims concerning the same dismissals and referrals to the Nursing and Midwifery Council. The tribunal held that it had no jurisdiction because the earlier claims had been dismissed. The appeal concerned whether rule 25(4) required the respondent’s application for dismissal to be made in writing to the Employment Tribunal Office within 28 days.

1. Appeal dismissed. The Employment Tribunal correctly held that the second set of race discrimination claims could not proceed because the earlier claims concerning the same causes of action had been dismissed.
2. Rule 25(4) of the Employment Tribunals Rules 2004 imposes a 28-day time limit for a respondent’s application for dismissal. It does not require the application to be made in writing where the parties are present at a hearing and the application can be dealt with immediately.
3. The EAT followed Drysdale v Department of Transport (The Maritime and Coastguard Agency) and accepted that requiring a written application in those circumstances would serve no valid purpose. It could require an adjournment or further hearing and would be inimical to dealing with cases expeditiously and saving expense, contrary to the overriding objective under regulation 3(3)(b) of the Employment Tribunals Rules 2004.
4. The tribunal nevertheless had to consider whether dismissal was appropriate. The appellants gave no indication that withdrawal was intended to preserve the claims for later proceedings. The Employment Judge had heard the representatives, considered the matter and made a judicial order dismissing the claims. Rule 25(4) did not require a separate formal judgment.
5. The application to pursue an additional ground concerning the events at the earlier hearing was refused as excessively late and unsupported by evidence.

• Employment Tribunal: The appellants’ original race discrimination claims were dismissed following withdrawal. The tribunal later struck out their fresh claims for want of jurisdiction.
• Employment Appeal Tribunal: Appeal dismissed. The tribunal was entitled to entertain an oral application for dismissal and the fresh claims were barred.