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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Caldwell Hardware (UK) Ltd v Hooper [2006] UKEAT 0151_06_1205 (12 May 2006) URL: http://www.bailii.org/uk/cases/UKEAT/2006/0151_06_1205.html Cite as: [2006] UKEAT 151_6_1205, [2006] UKEAT 0151_06_1205 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE BIRTLES
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | Miss NADIA MOTRAGHI (of Counsel) Instructed by: Qdos Consulting Ltd Qdos Court Rossendale Road Earl Shilton Leicestershire LE9 7LY |
For the Respondent | No appearance or representation by or on behalf of the Respondent |
SUMMARY
Practice and Procedure: Withdrawal
Employment Tribunal Chairman on a review revoked an order dismissing a claim on it being withdrawn and ordered the claim to be reinstated. Failure to consider Khan v Heywood and Middleton Primary Care Trust [2006] IRLR 345 which held that a withdrawal cannot be revoked. Appeal allowed. Claim dismissed.
HIS HONOUR JUDGE BIRTLES
Introduction
The Material Facts
"We write to inform you that our client was adjudicated bankrupt on 4th July 2005. We attach hereto a copy of the Bankruptcy Order. In these circumstances our client is not able to continue with his application to the Tribunal. We have notified the Tribunal Office."
EAT bundle page 52
"The claimant having given notice of his intention not to proceed with his application and the respondent having applied to have the claim dismissed, pursuant to Rule 25(4) of the Employment Tribunals Rules of Procedure 2004, this claim is hereby dismissed."
EAT bundle page 49
"I would not have withdrawn my claim if I had not been given incorrect information from an employee at your department."
EAT bundle page 39
I emphasise that no evidence has been provided either by the Respondent himself or his previous solicitors that this was indeed the case.
Grounds of Appeal
The Law
"Right to withdraw proceedings
25.1 – (1) A claimant may withdraw all or part of his claim at any time - this may be done either orally at a hearing or in writing in accordance with paragraph (2).
(2) To withdraw a claim or part of one in writing the claimant must inform the Employment Tribunal office of the claim or the parts of it which are to be withdrawn. Where there is more than one respondent the notification must specify against which respondents the claim is being withdrawn.
(3) The Secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date of which the Employment Tribunal Office (in the case of written notifications) or the tribunal (in the case of oral notification) receives notice of it, and where a whole claim is withdrawn, subject to paragraph (4), proceedings are brought to an end against the relevant respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs.
(4) Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed. Such an application must be made by the respondent in writing to the Employment Tribunal Office within 28 days of the notice of the withdrawal being sent to the respondent. If the respondent's application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed).
(5) The time limit in paragraph (4) may be extended by a chairman if he considers it just and equitable to do so."
Grounds of Appeal
"A tribunal or chairman who reviews a decision… may confirm, vary or revoke the decision. If the decision is revoked, the tribunal or chairman must order the decision to be taken again. When an order is made that the original decision be taken again, if the original decision was taken by a chairman without a hearing, the new decision may be taken without hearing the parties and if the original decision was taken at a hearing, a new hearing must be held." (emphasis added).
Remedy