WITHDRAWAL OF CLAIM

Khan v Heywood & Middleton Primary Care Trust: [2006] EWCA Civ 1087

CA: Brooke, Smith and Wall LJJ: 27 July 2006

The claimant brought a claim in the employment tribunal against the respondent trust, alleging unlawful race discrimination in relation to his unsuccessful application for a post on the trust's professional executive committee. By its response the trust denied discrimination and raised the issue of whether the post was one of employment. The claimant then made a claim in the county court under Part III of the Race Relations Act 1976 and notified the employment tribunal, pursuant to rule 25 of the Employment Tribunals Rules of Procedure 2004, that he was withdrawing his tribunal claim. After a change of legal advisers, he applied to set aside the withdrawal. A tribunal chairman refused the application on the ground that it was not open to him to do so, as by rule 25(3) the proceedings had been brought to an end; but he also refused the trust's application under rule 25(4) to dismiss the claim. The Employment Appeal Tribunal dismissed an appeal by the claimant, holding that rule 25(4) could not be read as implying that if withdrawn proceedings were not also dismissed they could be continued.

The claimant appealed.

The Court of Appeal held:
Where a claim was withdrawn no application to dismiss was necessary to bring the proceedings to an end, as rule 25(3) of the Employment Tribunals Rules of Procedure 2004 expressly so provided, though there might be further proceedings as to costs or, where a party wished to establish once and for all that there was to be no further litigation of the same issues, an application for the proceedings to be dismissed. Notwithstanding the apparent contradiction in the language used in paragraphs (3) and (4) of rule 25, on a true construction, the words "brought to an end" in rule 25(3) meant that the withdrawn proceedings could not be revived, though that did not preclude a fresh claim on the same facts if there was no dismissal. Accordingly, there was no error of law in the decision of the employment tribunal chairman and the claimant was not entitled to have the withdrawal of his claim set aside.

The appeal was dismissed.

Appearances: Diya Sen Gupta (Bury Metro Racial Equality Council, Bury) for the claimant; Brian McCluggage (Hempsons, Manchester) for the respondent trust.