Veitch Penny LLP - Exeter | Crediton, Devon

Case

Sajid Saeed Khan v Heywood and Middleton Primary Care Trust (CA)
Court of Appeal - 27 July 2006

Issues

(1) Tribunal procedure
(2) The Employment Tribunal's (Constitution and Rules of Procedure) Regulations 2004, Schedule 1 ("the Regulations")
(3) Withdrawal

Facts

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.

Rule 25 of the Regulations was considered. Rule 25 provides that:
"(1) A Claimant may withdraw all or part of his claim at any time - this may be done orally at hearing or in writing in accordance with paragraph (2).
(2) To withdraw a claim or part of one in writing, the Claimant must inform the Employment Tribunal Office of a claim or the parts of it which are to be withdrawn. Where there is more than one Respondent, the notification must specify against which respondents the claim is being withdrawn"

The Rule goes on to state:
"(4) Where a claim has been withdrawn, a Respondent may make an application to have the proceedings against him dismissed…If the Respondent's application is granted and the proceedings are dismissed, those proceedings cannot be continued by the Claimant (unless the decision to dismiss is successfully reviewed or appealed)".

The Chairman found that Rule 25 did not allow for a withdrawal notice to be set aside. Dr Khan's application was dismissed and he was ordered to pay the Respondent's costs of £1,294.79.

The matter was referred to the Employment Appeal Tribunal (EAT), and subsequently to the Court of Appeal.

Decision

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.

Comments

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.

Rachel Billen - Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it