Appeal No. UKEATPA/1376/07/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 June 2008

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
(SITTING ALONE)

MR N E CORDELL	APPELLANT

DHL EXEL EUROPE LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

	APPEARANCES

For the Appellant	MRS MOIRA ABDEL-RAHIM
(Representative)	
For the Respondent	Written submissions	

SUMMARY

PRACTICE AND PROCEDURE:  Withdrawal

The appellant failed in pursuing unfair dismissal and wrongful dismissal claims in the Employment Tribunal.  He appealed and was rejected under rule 3(7) and again after submitting a fresh ground of appeal under rule 3(8). He sought an oral hearing pursuant to rule 3(10). Before the application was heard, he applied for the appeal to be withdrawn. The Registrar acceded to the application and made an order dismissing the appeal.  The applicant claimed to have made the application under a misunderstanding of the position of the respondent.  He sought to have the order overturned.  

On appeal, the President held that the decision to dismiss the appeal was, in the circumstances, plainly correct.  The appeal was dismissed.

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This is an appeal against the decision of the Registrar in which she gave leave for the applicant’s appeal to be withdrawn. This followed a letter from him dated 28 April 2008 in which he requested that that step be taken. She drew up an order dated 1 May granting the application and dismissing the appeal.  Subsequently by an email dated 7 May the applicant’s representative asked the court to disregard the order.  The Registrar properly pointed out that it was not possible simply to withdraw it but that she would treat the e-mail as an appeal under Rule 21 of the EAT rules to have the order discharged and the appeal reinstated.

2.	Rule 21 permits an appeal direct to a judge from any party who is aggrieved by a decision of the Registrar.  I treat this appeal effectively as a re-hearing, putting myself in the position in which the Registrar was when she made her decision. Mr Cordell was spiritedly represented by his wife, Mrs Cordell.

3.	The background to this application is briefly as follows. The claimant put in a claim before the Employment Tribunal for wrongful dismissal and unfair dismissal following his dismissal for gross misconduct on St Valentine’s Day 2007. He received a payment in lieu of notice. The Tribunal dismissed the claim as being misconceived and awarded a small amount of costs in the order of £200 against him. This was substantially less than the sum claimed by the employers.  There was not sufficient continuity of employment for the unfair dismissal claim, and even if the wrongful dismissal claim were to succeed, the employers had made a payment in lieu which met the liability.

4.	There was subsequently an application to the Employment Tribunal to review that decision.  This was rejected on the grounds that it had no reasonable prospect of success.  The principal ground was that the pay in lieu should have been gross rather than net.  The judge rejected that.  He also pointed out that he had found that the statutory procedures had been complied with, but even if they had not, it did not assist the claimant.  The effect would be an uplift of damages but if there were no damages, there was nothing to uplift.

5.	The claimant appealed to this Tribunal. His Honour Judge Richardson rejected the appeal on the sift, concluding that it had no reasonable prospect of success. In the judge’s view the claimant had been paid what he would have recovered in any wrongful dismissal action. He also agreed with the employment judge about the irrelevance of any breach of the statutory procedures.  The costs were properly awarded, given that the claimant had been alerted to the difficulty of successfully prosecuting the case.  The EAT can interfere only if there is a clear error of law.

6.	There was a fresh Notice pursuant to rule 3(8) which was reconsidered by His Honour Judge Birtles. He considered that the new points made were irrelevant and that the Tribunal had been right to dismiss the case, and there was no realistic prospect of the appeal succeeding.

7.	The claimant was notified of that decision on 6 December 2007. The claimant indicated that he wished to exercise his right under rule 3(10) to renew his application in person before a judge.

8.	A hearing was fixed for 25 June 2008. By an email dated 28 April the claimant indicated that he wished to withdraw “as I believe that a hearing at public expense is no longer required”. In view of that application, the Registrar made the Order to which I have made reference, on 1 May.   As I have said, an e-mail was then sent to the EAT on 6 May, effectively asking for the appeal to be reinstated. By then the employers had been notified of the Registrar’s order.

9.	 The claimant’s case is that the matter had earlier been withdrawn in good faith. Mrs Cordell says that her husband had written to the respondent and offered to withdraw the appeal on the basis that the respondent would indemnify him in full for the unwarranted dismissal and the damage to his reputation. He had said in his letter that unless he heard from the respondent by 2 May, he would assume that they had agreed to accept liability. When he later heard from them, after having sent the letter to the EAT seeking withdrawal and after the Registrar had made the order, they notified him that they were content with the decision of the Employment Tribunal.  The clear inference was that they would not accept liability.  In view of that response, he now wishes to re-open his appeal.

10.	The claimant has now twice had his claim rejected at the sift stage. He chose to withdraw his appeal. He did so before hearing from the respondents in quite unequivocal terms.  He says that he thought that he was entitled to treat the silence of the respondents as agreement with the proposal that he made in his letter that they would accept liability. That was a bizarre assumption to make, given that the respondents had a Tribunal decision in their favour and had not at any stage led him to believe that they accepted that there had been any improper behaviour on their behalf.  He is not, of course, entitled to treat their silence in response to his letter as an as acceptance of its terms. 

11.	The claimant withdrew the claim. He did so without any qualification, making the sensible observation that it was not in the public interest for the hearing to go ahead. The decision of the Registrar was plainly correct.  She had an application to withdraw a case which had twice been assessed to have no prospect of success, and where the party making the application accepted that the public interest was not served by continuing the appeal.  I have no doubt that this was the only sensible order to make.

12.	I doubt whether I can properly have regard to the subsequent explanation why the step was taken.  That was not available on the date the order was made. But even if I can, it does not alter my decision.  If the claimant chose to jump the gun by withdrawing the appeal before hearing from the employers, that is his own fault.  This is not a case where there was misrepresentation by the other party or anything of that nature which might make it just to revisit the order.  I see no merit in this case being reinstated, and given the very small sums at stake, and the avenues of appeal already pursued, the overriding objective militates against that course. Nor do I see any basis for departing from the assessment of the judges that there is no substantive merit in the grounds of appeal in any event. Finality has to be achieved. The order dismissing the appeal was properly made.

13.	I should add that there is an application to amend yet again the Notice of Appeal which raises yet further grounds, such as that the claimant was not on an equal footing with the respondent; that the Tribunal did not notify the claimant that he might be able to claim for dismissal for health and safety reasons; and that the hearing was conducted unfairly in various ways.  Even had I allowed the rule 3(10) application to be reinstated, I would have rejected all of these points.  It is striking that they were not made in the original grounds of appeal nor in the first amendment of that Notice. 

14.	I should finally mention two further matters strongly urged upon me by Mrs Cordell.  First, she says that it was wrong to dismiss the claims without giving the claimant the opportunity to tell his side of the case.  But there was no point in that. He may have felt that he was unfairly treated, but since there was no unfair dismissal claim on foot, there was nothing for the Tribunal to investigate.  The wrongful dismissal claim simply depended on the short point whether, as a matter of law, the right sum had been paid.  The facts were not in dispute and therefore there was no relevant evidence to be given.

15.	Second, she says that with hindsight she would have claimed that the dismissal was automatically unfair for health and safety reasons.  The 12 month qualifying period would not apply to such a case.  However, it cannot conceivably be said that the Tribunal was in error in failing to alert the claimant to this possibility.  That is not a legitimate ground of appeal in any event.  

16.	I appreciate that Mrs Cordell and her husband feel aggrieved at the award of costs, although I would be minded to agree with the other two judges who have not identified any error of law with respect to that.  However, even if the point was conceivably arguable, in my judgment that would not justify the step of reviving the appeal after it had been unambiguously withdrawn, given the history of these proceedings.  

17.	It follows that this appeal is rejected.