Paul v Virgin Care Ltd

An Employment Tribunal considering a withdrawal by an unrepresented litigant must be satisfied that it is clear, unambiguous and unequivocal. The necessary degree of enquiry depends on the circumstances. It need not investigate a withdrawal unless there is a reasonable cause for concern, and must remain impartial.

The Tribunal has a wide margin of judgment concerning appropriate assistance to a litigant in person. Fair questions intended to clarify how a claim is put, and a careful confirmation of the withdrawal, do not amount to unfair pressure. An appeal may still be determined where the underlying claim can no longer succeed if a live procedural issue and a sufficient public interest remain.

The Claimant appealed against an Employment Tribunal order, sent on 4 January 2018, dismissing upon withdrawal her claim of automatically unfair dismissal under regulation 7(1)(b) of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

At a preliminary hearing concerning strike-out and deposit applications, the unrepresented Claimant accepted that she could not establish a direct connection between her dismissal and the transfer. After questioning and repeated confirmation by the Employment Judge, she withdrew that claim. The Tribunal made deposit orders concerning her remaining claims.

The Claimant alleged that the Judge had failed to ensure an informed and voluntary choice, and had exerted unfair pressure. The Respondent submitted that the appeal was academic because a later Tribunal decision had dismissed the remaining claims and made findings incompatible with a successful regulation 7 claim.

1. Appeal dismissed. The appeal was not one which the EAT should decline to hear as academic. Although the later Tribunal findings meant that the Claimant could not now successfully pursue the regulation 7(1)(b) claim, there remained a live issue concerning the propriety of the earlier hearing. There was also a public interest in determining an arguable complaint about the treatment of an unrepresented litigant.
2. The appropriate assistance or intervention for a litigant in person depends on the circumstances and is subject to the Tribunal’s duty of impartiality. The Tribunal has a wide margin of judgment. In a withdrawal case, it must be able to conclude that the withdrawal is clear, unambiguous and unequivocal. The extent of any enquiry depends on whether the circumstances reasonably cause concern that it is not.
3. The Employment Judge acted fairly in asking how the Claimant said that her dismissal was connected with the transfer. Those questions were relevant to the strike-out application and sought to understand the case she advanced. They did not require her to withdraw the claim or communicate that she had no choice.
4. The Claimant understood the central difficulty: she could not show that the transfer was linked to her dismissal. The Judge expressly made clear that continuation was a matter for her. He then read out the proposed record of withdrawal and twice gave her an opportunity to correct it. Her confirmation amounted to the careful pause and check required in the circumstances.
5. Nothing at the hearing reasonably indicated confusion, impaired capacity to conduct the hearing, or a need for greater intervention. The prior withdrawn disability claim did not put the Judge on notice of a current mental-health-related difficulty. The withdrawal was clear, unambiguous and unequivocal, and no unfair pressure was applied.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal from the order dismissing the withdrawn automatically unfair dismissal claim.
• Employment Tribunal, Bristol: Employment Judge Harper, sitting alone, dismissed the regulation 7 claim upon the Claimant’s withdrawal in a decision sent on 4 January 2018.
• Employment Tribunal, Exeter: in a later decision sent on 9 May 2018, dismissed the Claimant’s remaining unfair-dismissal and contractual claims. The Claimant’s attempted appeal from that decision was unsuccessful.