Reinstating Withdrawn Claims

The EAT has handed down an esoteric case on the construction of rule 25 of the Employment Tribunal (Constitution and Rules of Procedure etc.) Regulations 2004.

Under rule 25, a Claimant can withdraw his case at any time. If the Respondent chooses, it can then apply to have the withdrawn proceedings formally dismissed.

In Khan v Heywood Primary Care NHS Trust, Dr Khan withdrew his race discrimination claim on legal advice. Following a change of advisers (and, presumably, advice), he applied to set aside the withdrawal so as to enable him to resume his claim.

The Employment Appeal Tribunal (Rimer J.) held that a tribunal has no power to set aside a notice of withdrawal. The effect of withdrawing a claim means that the Claimant is free to issue a fresh claim based on the same facts (subject to any limitation issues), whereas if the Respondent successully applies to have the claim dismissed upon withdrawal, the Claimant then becomes debarred from issuing a fresh claim based on the same facts.

The crux of the judgment (the arguments are complex!) is at paragraph 24.

The EAT also upheld a costs order under Dr Khan, on the basis it was unreasonable for him to withdraw his claim, and then renege on his withdrawal and seek to have the claim reinstated.

Khan v Heywood Primary Care NHS Trust