The Court of Appeal's decision in Rothschild v Ako is now available. The decision was handed down on Friday, 1st March 2002.
Mrs Ako lodged an unfair dismissal and race discrimination claim against Rothschild. After seeking advice from the CRE, she realised a claim should also have been brought against a possible transferee under TUPE. She therefore checked that no IT3 had been lodged, and checked in an old law book in her library (the book dating from1980) that there was no rule prohibiting her from withdrawing and re-issuing her claim. She then wrote to the tribunal to withdraw her first claim and, within a week, issued a new claim against both Rothschild and the putative transferee.
During that week, the tribunal issued its standard order dismissing the claim against Rothschild on withdrawal by the Applicant.
The employment tribunal found the subsequent claim against Rothschild had been disposed of, and that the rules of issue estoppel prevented her from bringing a fresh claim. It relied on the well-known authority of Barber v Staffordshire Council, which provides that once a case has been dismissed on withdrawal, that is the end of the matter - it does not matter why the Applicant chose to withdraw the claim.
The Court of Appeal held that a tribunal is obliged to examine the factual matrix to decide whether the Applicant had genuinely intended to abandon the claim. If she had intended to abandon the claim, the matter ends under principles of issue estoppel (and the reason, eg being wrongly advised as to the law, is irrelevant).
However, in this case, Mrs Ako had not intended to abandon her claim. The position was similar to the recent case of Sajid v Sussex Muslim Society, where the Applicant expressly reserved the right in the IT1 to re-issue his breach of contract claim in the High Court.
Accordingly the ET's decision would be set aside, and Mrs Ako would be permitted to proceed with her claim against Rothschild.
For a copy of the judgment, click here.