|Sajid Saeed Khan v Heywood and Middleton Primary Care Trust (CA)Court of Appeal - 27 July 2006|
|Written by Veitch Penny LLP|
Sajid Saeed Khan v Heywood and Middleton Primary Care Trust (CA)
(1) Tribunal procedure
Dr Khan made a claim at the Employment Tribunal for race discrimination following an unsuccessful application for a post on the Trust's Professional Executive Committee. The Trust denied discrimination. They argued that the position in question was not one of employee status and consequently the Tribunal had no jurisdiction to hear the claim. Dr Khan decided to withdraw his claim and his solicitors wrote to the Tribunal confirming his decision. The Tribunal advised the parties' solicitors that the file had been closed. Dr Khan then consulted the Bury Racial Equality Council. They wrote to the Tribunal on Dr Khan's behalf asking for the withdrawal notice to be set aside and for the matter to be listed for a pre-hearing review. The Trust applied for the withdrawal claim to be dismissed and applied for a costs order against Dr Khan.
The EAT considered the construction of Rule 25. Withdrawal of proceedings under Rule 25 brings a particular set of proceedings in the Tribunal to an end and there is no way of reviving them by asking for the Notice of Withdrawal to be set aside. The Court of Appeal confirmed the decision of the EAT.
It should be noted that a Claimant is not prevented from bringing fresh proceedings arising from the same subject matter. By contrast however, if the Respondent has sought to protect his position by applying for the proceedings to be dismissed under Rule 25(4) and the proceedings are dismissed, then a cause of action estoppel arises and the Claimant cannot bring a fresh action.