In Khan v Heywood and Middleton Primary Care Trust, the EAT held that rule 25 of the Employment Tribunal Rules of Procedure 2004 does not give a tribunal jurisdiction to set aside a notice of withdrawal of a claim.
The EAT distinguished between a claim that has been simply withdrawn, and a withdrawn claim that has also been dismissed. A claimant who has withdrawn their claim may issue new proceedings arising out of the same facts, whereas a claimant whose withdrawn claim has been dismissed may not.
Dr Khan brought a claim of race discrimination after his application to the Professional Executive Committee of the Heywood and Middleton Primary Care Trust was refused. The trust claimed that as this position on the committee would not have made Kahn an employee of the trust, the tribunal did not have jurisdiction to hear the claim. Khan subsequently withdrew his claim.
A short time later, Khan instructed different solicitors and asked the tribunal to set aside his earlier withdrawal, stating that the tribunal had discretion to do this under its management powers. At the same time, the trust applied to have the withdrawn claim dismissed. The tribunal refused both applications, although it awarded a costs order against Khan, stating that his notice to set aside the withdrawal claim had been unreasonable. He appealed.
Khan argued that if proceedings were not dismissed, then they could be continued, allowing him to proceed with his claim.
The EAT dismissed the appeal on the basis that rule 25 did not give the tribunal jurisdiction to set aside a notice of withdrawal and did not permit the claimant to change his mind. The EAT also upheld the costs order against Khan. The Court of Appeal upheld the decisions of both the tribunal and the EAT.
There is a difference between a withdrawal and a dismissal of proceedings.
The drafting in rule 25 is ambiguous, but this case confirms that once a claim has been withdrawn, it is at an end, and the tribunal cannot reinstate it.
If the respondent successfully applies to have a claim dismissed, the claimant cannot bring a fresh claim on the same or similar facts. If the claim is not dismissed, the claimant can bring a fresh claim on the same facts, as long as they are still within the limitation period for the claim.
What you should do
Apply for withdrawn claims to be dismissed within the 28-day time period set out in rule 25 of the Employment Tribunal Rules of Procedure 2004 so that these claims cannot be re-litigated.
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By Joe Glavina, legal director, and Phil Williams, associate, Addleshaw Goddard