The appeal was permitted to proceed to a full hearing, having been considered on the sift by His Honour Judge Beard, by an Order sealed on 14 October 2024.
On 21 October 2024, the respondent's solicitors sent an email stating:
The claimant's main contention is that his emails were not clear, unequivocal and unambiguous, and therefore there was no withdrawal, and he should be able to proceed with his original claim in the Employment Tribunal. He does not seek only to set aside the dismissal judgment. Setting aside the dismissal judgment would mean that he would no longer be precluded from raising the same or substantially the same complaint again, but that would be unlikely to assist the claimant if he wants to bring a claim in the Employment Tribunal because any new claim would be likely to be out of time.
The claimant has not suggested that he wants to bring proceedings elsewhere.
The appeal raises the question of what a claimant is to do if it is asserted that there was no withdrawal because the communication was not clear, unequivocal and unambiguous. Withdrawal is automatic and does not result in a judgment being issued by the Employment Tribunal. If there has been an effective withdrawal it cannot be undone. How, then, is a claimant to challenge an assertion that the claim has been withdrawn; or a respondent to assert that there has been a withdrawal.
A dismissal judgment can be challenged. However, if a dismissal judgment is revoked that does not necessarily mean that the claim in the Employment Tribunal was not withdrawn. If a withdrawal was effective it cannot be undone and the claim in the Employment Tribunal is at an end. In such circumstances, the consequence of the revocation of the dismissal judgment would be that the claimant would not be prevented from commencing a further claim against the respondent raising the same, or substantially the same, complaint, but the original claim would still be at an end.
I have considered whether the claimants challenge as to whether there has been an effective withdrawal should have been to earlier correspondence from the Employment Tribunal.
If a claimant asserts that there has been no withdrawal it is necessary to obtain a judicial determination as to whether the claim has been withdrawn. If an Employment Judge concludes that there has, or has not, been withdrawal that must be stated in a decision that could be appealed by a party that disagrees with the decision of the Employment Tribunal.
Rule 1(3) ETR 2013 (now in similar terms in Rule 2 ETR ) provides
Where there is a dispute as to whether there has been a withdrawal, a judicial determination of that issue is a judgment. It is a decision that is capable of finally disposing of any claim. It is not a case management order.
Where the dispute arises, otherwise than in the context of consideration of whether a dismissal judgment should be issued or set aside, there should be a freestanding judgment determining the issue. On other occasions where a claimant asserts that a dismissal judgment should not be issued (or should be set aside) because there was no effective withdrawal, the two points can be dealt with in a single judgment, but the two determinations should be set out separately; whether the claim has been withdrawn and whether to issue a dismissal judgment. On appeal it might be determined that the claim was effectively withdrawn but a dismissal judgment should not have been issued. If it is decided that the claim was not withdrawn that would necessarily result in any dismissal judgment being set aside.
Analysis
The procedure in the Employment Tribunal became very muddled. Messages repeatedly crossed and correspondence was sent in ignorance of important items of previous correspondence.
On 9 June 2024, a letter was sent by a member of the Employment Tribunal staff thanking the claimant for informing the Employment Tribunal that he had withdrawn his claim. The letter did not constitute a judicial decision made by either a Legal Officer or an Employment Judge. The letter sent on the instructions of Employment Judge Butler on 20 June 2024, stated that the claim had been unambiguously withdrawn and that there was no means of resurrecting it. Employment Judge Butler stated that the claim had correctly been dismissed on withdrawal, whereas that was yet to occur. Employment Judge Butler's decision was only properly put into effect when the withdrawal judgment was issued. Regional Employment Judge Franey suggested that the dismissal judgment could be challenged by appeal to the EAT if the claimant wished to challenge his and Employment Judge Butler's conclusion that there had been an unequivocal withdrawal. Accordingly, I infer that the withdrawal judgment did two things, it was both a judgment putting into effect the determination that there had been an effective withdrawal and was also a dismissal judgment.
The surrounding correspondence demonstrates that the reason why the Employment Judges concluded that there was an effective withdrawal was because the claimant's second email was considered to be unequivocal.
The EAT, perhaps unsurprisingly, did not, when the appeal was submitted, pick up on the fact that there were no reasons for the dismissal judgment, which often is the case. I have concluded that I should exercise my discretion to hear the appeal without written reasons: Section 3.7.3 Employment Appeal Tribunal Practice Direction 2024 . I do not consider that I need to exercise my power to request that the Legal Officer provide reasons because they are already clear enough from the correspondence, and it would result unnecessary delay.
Having regard to the confused correspondence, it might have been better had the claimant's email of 5 July 2024 been treated as an out of time request for the decision of the Legal Officer to be considered afresh by an Employment Judge. An Employment Judge could then have considered the matter having regard to all of the correspondence and surrounding circumstances and provided a reasoned judgment, including decision on both questions of whether the claim had been withdrawn and whether a dismissal judgment should be issued.
While I accept that a wide margin of appreciation is to be applied to the decision-making of the Employment Tribunal, I have concluded that the dismissal judgment was made in error of law. On a proper analysis of all the relevant correspondence and circumstances, including the fact that the claimant was recently bereaved and in fear of costs, the only decision that could have been reached was that there was not an unequivocal withdrawal. The first email clearly stated that the claimant was only considering withdrawal because of his concern that he might be liable for costs. He sought advice from the Employment Tribunal so that he might further consider withdrawing. While the Employment Tribunal could not advise the claimant, it was able to set out some general principles about costs in the letter of 4 June 2024, which would have provided the level of comfort that the claimant wanted when he was considering withdrawing his claim. The fact that the letter of 4 June 2024 was sent questioning whether the claimant wanted to withdraw the claim, demonstrates that, when the first email was considered by Employment Judge Batten, it was correctly treated as being equivocal. The second email had to be read in the context of the first and the claimant having informed the Employment Tribunal of his recent bereavement and concern about costs. On a proper reading, the second email remained equivocal and any doubt falls away when it is read with the first. Accordingly, the only possible conclusion was that the claim had not been withdrawn. That meant that the claim did not automatically come to an end and there could be no judgment on withdrawal. The appeal is allowed and the matter is remitted to the Employment Tribunal for case management.
I explained to the claimant that the generalised points the Employment Tribunal made about costs in the letter of 4 June 2024, do not mean that they had assessed the specific merits of his claim. If the claimant wishes to obtain advice about the merits of his claim, and the risks, if any, that he might at some stage be subject to an award of costs, he should seek legal advice from a solicitor or other independent legal adviser.