P McCrory v Healthwatch Stockport Limited

A purported withdrawal of an Employment Tribunal claim is effective only if the claimant’s communication, read fairly in its full context, is clear, unequivocal and unambiguous. Conditional language, or language showing that the claimant is still considering withdrawal pending information about costs, will not end the claim.

Withdrawal is the claimant’s act and takes effect without a tribunal decision. A dismissal following withdrawal is a distinct judicial act under the Employment Tribunal Rules 2013. Where withdrawal is disputed, the tribunal must make a judicial determination, capable of appeal, as to whether there was an effective withdrawal. If there was none, no dismissal judgment can stand.

The claimant brought Employment Tribunal proceedings alleging unfair dismissal, sex and race discrimination, and whistleblowing detriment. Following correspondence about the respondent’s prospective strike-out application and possible costs, the claimant sent two emails expressing concern about costs and referring to withdrawal.

Tribunal correspondence treated the second email as an unambiguous withdrawal. A Legal Officer then issued a judgment dismissing the proceedings following withdrawal. The claimant appealed, contending that neither email constituted a clear, unequivocal and unambiguous withdrawal and that his original claim should continue.

The central issue was whether, in their factual and procedural context, the claimant’s emails had effectively withdrawn the claim.

1. Appeal allowed. The dismissal judgment involved an error of law. It was set aside and the proceedings were remitted to the Employment Tribunal for case management.

2. Under rule 51 of the Employment Tribunal Rules 2013, withdrawal is the claimant’s act. It brings the claim to an end without a tribunal decision and cannot subsequently be undone. But a communication cannot be treated as a withdrawal unless it is clear, unequivocal and unambiguous. The Tribunal applied the principle stated in Segor v Goodrich Actuation Systems Ltd, [2012] UKEAT/0145/11/DM.

3. The claimant’s first email expressly said that he wished to obtain information about the possible costs position so that he could give further consideration to withdrawal. The second email had to be read with the first email, his recent bereavement, and his stated fear of costs. It remained conditional and equivocal. The only lawful conclusion was that there had been no withdrawal.

4. A dismissal under rule 52 is distinct from withdrawal. It is a judicial act with the additional consequence that a claimant may not commence a further claim concerning the same or substantially the same complaint. The Tribunal must determine separately whether there was an effective withdrawal and whether a dismissal judgment should be issued.

5. Where the existence of a withdrawal is disputed, the Tribunal must issue a judicial determination on that issue. It is a judgment, rather than a case-management order, because it is capable of finally disposing of the claim. Since there was no effective withdrawal here, the claim had not automatically ended and no dismissal judgment could be made.

• Employment Appeal Tribunal: Allowed the claimant’s appeal against the Legal Officer’s dismissal judgment and remitted the claim to the Employment Tribunal for case management: [2026] EAT 3.
• Employment Tribunal: A Legal Officer signed a judgment on 26 June 2024, sent on 28 June 2024, dismissing the proceedings following an asserted withdrawal.