Arvunescu v Quick Release (Automotive) Ltd

A withdrawal of an Employment Tribunal claim cannot be inferred merely from an unrecorded discussion at a hearing. Where a claimant has withdrawn all or part of a claim under Rule 51, Rule 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 requires the Tribunal to issue a judgment recording the withdrawal.

A strike-out for failure to pay a deposit is also an exercise of judicial discretion. Where the claimant has sought relief from the sanction and explained an inability to pay by the prescribed method, the Tribunal must consider that application, balance the relevant prejudice and give adequate reasons if it refuses relief. A bare reference to non-payment and an earlier extension is insufficient.

The claimant brought Employment Tribunal proceedings for unfair dismissal, breach of contract and race discrimination following his dismissal from fixed-term employment. His unfair dismissal claim had been struck out. Directions made at a preliminary hearing concerned the race discrimination claim, and the respondent later contended that the breach of contract claim had been withdrawn.

A deposit was ordered for the race discrimination claim. The claimant, then living in Romania, said that he could not pay by cheque or postal order but sought to pay by other means and applied for further time and relief from sanction. The Tribunal struck out the discrimination claim for non-payment. It later refused a proposed amendment to the breach of contract claim because it considered that no extant claim remained.

The claimant brought two conjoined appeals. The central issues were whether the breach of contract claim had been withdrawn and whether the deposit strike-out was lawfully reasoned.

1. The two appeals were allowed and remitted to the Employment Tribunal.

2. The Tribunal erred in treating the breach of contract claim as no longer extant. Rule 51 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides for a claim to end when a claimant informs the Tribunal of its withdrawal. Rule 52 then requires the Tribunal to issue a judgment dismissing the withdrawn claim and recording the nature of the withdrawal. No such judgment had been issued. In the absence of clear evidence and, in particular, the required formal judgment, withdrawal could not be inferred. The Tribunal therefore wrongly refused to consider the proposed amendment on the basis that there was no claim to amend.

3. The strike-out of the race discrimination claim for non-payment of the deposit also involved an error of law. The claimant had expressly sought relief from sanction and had explained that, while willing and able to pay, he could not obtain a sterling cheque or postal order from Romania. Even an unless order or an order providing for an automatic sanction requires the exercise of judicial discretion when relief is sought before the sanction takes effect.

4. The Tribunal gave no adequate reasons for rejecting the claimant's explanation or for refusing further time. It did not demonstrate a balancing exercise between the parties' competing prejudice. Non-payment and the fact that one extension had already been granted did not sufficiently explain why strike-out was in the interests of justice.

5. The Employment Tribunal was to reconsider both the application concerning the breach of contract claim and the decision to strike out the race discrimination claim.

• Employment Appeal Tribunal: two conjoined appeals from case-management decisions of the Employment Tribunal at Reading were allowed and remitted.
• Employment Tribunal, Reading: the race discrimination claim was struck out for non-payment of a deposit. The Tribunal subsequently treated the breach of contract claim as no longer extant and refused an amendment on that basis.