D Kaur v Birmingham City Council

Under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, dismissal following withdrawal is mandatory unless the claimant reserved a right to bring a further claim at withdrawal or dismissal would not be in the interests of justice. A tribunal need not make enquiries in every withdrawal case. However, where a claimant later invokes the interests-of-justice exception, it must evaluate the explanation advanced, including any asserted ignorance of dismissal’s possible consequences.

That evaluation is not governed by a separate test of reasonable ignorance. It forms part of the overall interests-of-justice assessment, applied consistently with the overriding objective. A tribunal may conclude that a claimant who instructed solicitors about a related proposed claim ought to have disclosed earlier formal proceedings arising from the same facts, even if unaware of the precise legal consequence of dismissal.

The claimant withdrew her Employment Tribunal discrimination claim while unrepresented. The claim was then dismissed following withdrawal. About seven months later, after personal-injury solicitors learned of the earlier Tribunal proceedings, she sought reconsideration because she feared that dismissal could affect a proposed civil personal-injury claim.

An Employment Judge considered the legal officer’s dismissal decision afresh, extended time for the application, but held that dismissal should stand. The judge later refused reconsideration. The claimant appealed, contending that the judge had failed to decide whether her ignorance of the consequences of withdrawal and dismissal was reasonable.

The central issue was whether the judge erred in the application of the interests-of-justice exception to dismissal following withdrawal.

1. Appeal dismissed. The Employment Judge did not err in affirming the dismissal following withdrawal or in refusing reconsideration.

2. Rule 52 requires dismissal of a withdrawn claim unless rule 52(a) or rule 52(b) applies. Rule 52(a) was plainly unavailable because the claimant had not, at withdrawal, reserved a right to bring a further claim. Although a tribunal need not enquire in every case why a claim is withdrawn, it may make enquiries where material suggests that dismissal might not be in the interests of justice: Campbell v OCS Group UK Ltd, UKEAT/0188/16.

3. Where a claimant has positively raised, before dismissal, a wish to pursue a further claim and says that they had been ignorant of dismissal’s legal implications, that explanation cannot simply be ignored. A post-dismissal reconsideration may also provide an appropriate route to seek reopening on that basis. The governing question nevertheless remains whether dismissal would not be in the interests of justice, considered through the overriding objective. There is no separate legal test of whether ignorance was reasonable.

4. The Employment Judge had considered the claimant’s mental ill health and was entitled to find that it did not prevent her from telling her personal-injury solicitors about the previous Tribunal proceedings and their withdrawal. In the reconsideration decision, the judge specifically addressed the claimant’s asserted ignorance. She was entitled to conclude that the previous formal proceedings were relevant information which the claimant ought to have disclosed to solicitors dealing with a related proposed claim, whether or not she then understood the possible preclusive effect of dismissal.

5. Had that information been given, the issue could have been raised with the Tribunal before dismissal. The conclusion was open to the Employment Judge and no perversity challenge was advanced. Questions about any civil claim’s viability, estoppel or limitation were not determined.

• Employment Appeal Tribunal: Appeal dismissed. The decisions affirming dismissal upon withdrawal and refusing reconsideration stand.
• Employment Tribunal, Midlands (West): An Employment Judge, considering afresh a legal officer’s dismissal decision, held that the withdrawn claim remained dismissed and later refused reconsideration.
• Employment Tribunal legal officer: The claimant’s withdrawn claim was dismissed under rule 52 of Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.