The claimant brought claims against the defendants in the employment tribunal for unlawful discrimination, breach of contract, detriment for making protected disclosures, constructive unfair dismissal and arrears of pay. Two days before an initial hearing he withdrew his claim pursuant to rule 25 of the Employment Tribunals Rules of Procedure 2004, but when the first defendant applied to have the claim dismissed under rule 25(4) the claimant objected, submitting that he had been obliged to withdraw for economic reasons and if one of the defendants intended to pursue a costs order he would wish to re-activate his claim rather than face such an application. The employment tribunal responded by informing the claimant that the tribunal had no jurisdiction to “re-activate”’ a claim that had been withdrawn. The claimant subsequently presented a claim in the High Court against the defendants for breach of contract and damages for tortious conspiracy. The second defendant pleaded that the claimant was estopped from pursuing his claim against it because of the earlier employment tribunal proceedings. The first defendant then wrote to the employment tribunal drawing attention to the fact there appeared to have been no decision on its application for the claimant’s claim to be dismissed. In response the tribunal ordered that the proceedings which the claimant had brought against the defendants should be dismissed “following a withdrawal of the claim by the claimant”, a decision affirmed by the Employment Appeal Tribunal. On a trial of preliminary issues, the judge found that the claimant was estopped from bringing his High Court claim, because before the action had begun he had issued and then withdrawn proceedings in the employment tribunal which were formally dismissed after the action had begun.
On the claimant’s appeal—
Held, appeal allowed. The judge had accepted that the decision of the Employment Appeal Tribunal on the question of withdrawal of the employment tribunal proceedings had created an issue estoppel. The “claim” or “further claim” under discussion in the Employment Appeal Tribunal could only have been a claim in the employment tribunal. The Employment Appeal Tribunal, therefore, had not decided that the withdrawal of the employment tribunal claim amounted to an abandonment of the underlying complaints for all purposes and in all fora. But even if it had so decided, that part of the decision was not necessary to the outcome of the appeal, since it decided the appeal against the revocation order on other independent grounds. It was only where an issue was a necessary ingredient of the cause of action that issue estoppel arose. That was not the case here and the court could look at the matter afresh. The question was whether the claimant had consented either expressly or by implication to concede the issue. The judge was correct that what mattered was the claimant’s intention at the time when he withdrew his claim. The mere fact that someone wrote to the employment tribunal asking for a claim to be withdrawn without explaining why shed no real light on the question whether he conceded that his claim would fail on the merits. The mere fact of withdrawal was in substance a discontinuance which implied no such concession. Here the e-mail evidence gave a clear indication that the claimant was not conceding and his objection to dismissal itself pointed to the withdrawal as being in substance a discontinuance. The judge had decided against the claimant on the ground that he should have made it clear (either expressly or by necessary implication) that he had it in mind to follow the withdrawal of the employment tribunal proceedings by proceedings in the High Court. The court did not consider that the burden on a claimant operating under the Employment Tribunals Rules of Procedure 2004 was that high (although an express reservation was now required by the 2013 Rules). The question was a more neutral one. The circumstances at the time of the withdrawal of the employment proceedings did not lead to the conclusion that the claimant had intended to concede the merits of his claim and so he was not precluded from continuing his High Court claim (paras 32–33, 42, 44, 45–48, 49, 50).
Giles Bedloe (instructed by CJ Jones Solicitors llp) for the claimant.
Thomas Cordrey (instructed by DAC Beachcroft llp) for the first defendant.
Mugni Islam-Choudhury (instructed by In-house Legal, The Practice Surgeries Ltd) for the second defendant.