Campbell v OCS Group UK

Withdrawal of an employment tribunal claim brings the proceedings to an end and the withdrawal cannot be revived. Under rule 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, dismissal must follow unless a stated exception applies. A tribunal is not required routinely to invite representations before dismissing a withdrawn claim. It may nevertheless make enquiries where the circumstances suggest that withdrawal was unclear, ill-considered, irrational, intended to be resurrected, or otherwise inconsistent with the interests of justice. The extent of any enquiry is a matter for the tribunal’s judgment and discretion. On reconsideration, the tribunal must address the dismissal decision separately from the withdrawal and consider all material circumstances, including events occurring after dismissal.

The claimant withdrew her employment tribunal claims by email during an adjournment of the substantive hearing, citing ill-health and medical advice. The tribunal treated the withdrawal as unequivocal and dismissed the claims under rule 52. The claimant then sought reconsideration, stating that stress and impaired judgment had affected her decision and that she had promptly sought to retract it. Employment Judge Zuke refused reconsideration on the basis that the withdrawal was unambiguous and could not be revived. The appeal concerned whether the tribunal had been required to invite representations before dismissal and whether it had properly considered reconsideration of the dismissal decision.

1. Withdrawal and dismissal. Under rule 51 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, withdrawal takes effect when notified and brings the relevant proceedings to an end. The withdrawal itself cannot be rescinded or revived. A fresh claim on the same facts remains possible unless the claim is dismissed.
2. Rule 52 is mandatory in form. A tribunal must issue a dismissal judgment following withdrawal unless one of the exceptions in rule 52(a) or (b) applies. The rule does not impose a mandatory obligation to invite representations before dismissal. The tribunal retains power to regulate its procedure fairly under the overriding objective.
3. A tribunal should ensure that a purported withdrawal is clear, unambiguous and unequivocal, particularly where the claimant is unrepresented. It may make appropriate enquiries where the circumstances give rise to reasonable concern. It is not obliged to investigate the reasons for withdrawal, especially where that could invite disclosure of privileged material or prejudice either party. The decision whether to enquire, and the extent of any enquiry, falls within the tribunal’s margin of discretion.
4. The original dismissal was lawful. The claimant’s email was unequivocal, showed consideration of possible costs consequences, did not reserve any right to bring a further claim, and disclosed no material suggesting that dismissal was contrary to the interests of justice.
5. However, the reconsideration application concerned the dismissal judgment, not the withdrawal alone. The Employment Judge had failed to address rule 52(b), the interests of justice, or events after dismissal, including the claimant’s prompt attempt to retract the withdrawal and the medical evidence. That was an error of law, and it could not be said that only one outcome was possible.
6. The appeal was allowed on ground two. The refusal of reconsideration was set aside and the issue was remitted to Employment Judge Zuke for fresh consideration.

• Employment Tribunal: Employment Judge Zuke dismissed the withdrawn claims under rule 52 on 15 December 2015 and refused reconsideration in a letter dated 22 January 2016.
• Employment Appeal Tribunal: The appeal succeeded on the reconsideration issue. The dismissal of the reconsideration application was set aside and the matter was remitted for fresh consideration.