Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS:            13684/18

            16061/18

 

 

CLAIMANT:                          Alex Beckley

 

RESPONDENT:                  Happy Days Day Nursery

 

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that:-

 

(1)          The email of 14 January 2019 from the claimant’s representative is a withdrawal for the purposes of Rule 25(1) in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

 

(2)          The claimant’s claim is therefore dismissed Under Rule 25(4) of the above mentioned rules, following the said withdrawal.

 

 

CONSTITUTION OF TRIBUNAL

 

Employment Judge (sitting alone):       Employment Judge Orr

                       

 

 

APPEARANCES:

 

The claimant was represented by Mr R Fee, Barrister-at-Law, instructed by the Equality Commission.

 

The respondent was represented by Mr P Moore of Copacetic Business Solutions Limited.

 

 

BACKGROUND

 

 

1.            The claimant presented a claim of disability discrimination to the tribunal on 12 September 2018.  The claim form identified her representative as “Ms Wendy Beckley”, her mother (hereinafter referred to as “the claimant’s mother”).  The respondent presented a response denying all heads of claim to the tribunal on 26 October 2018. 

 

2.            A Case Management Discussion took place on 7 January 2019 at which Case Management Orders were made and the case was listed for hearing.  The Record of Proceedings was issued by letter dated 11 January 2019.

3.            The tribunal received an email on 14 January 2019 from the claimant’s mother as follows:-

 

                        “Dear Sir/Madam

 

            Please accept this email as notification that I am withdrawing the claim.

 

This is based purely on the fact that I need legal assistance with the claim and at this time I am unable to afford a Solicitor.  The Equality Commission could take up to April to determine if they can offer assistance or not but I am having to move forward with the legal processes before having legal assistance confirmed.

 

I am completely sure that my daughter has been discriminated against because of her Autism Spectrum Disorder and I am very disappointed that I will not get the chance to prove this to the tribunal.

 

Regards

 

Wendy Beckley”

 

4.            An Employment Judge directed that this email be acknowledged, copied to the respondent’s representative and arranged a Case Management Discussion to consider same. 

 

5.            On 24 January 2019 the tribunal office received a further email from the claimant’s mother as follows:-

                       

“I have been asked to attend a further CMD tomorrow afternoon to discuss the below email.

 

I have since been advised by the LRA to contact the Ulster University Law Clinic which I have done.  They have stated that they will be able to offer legal assistance with my case.  I now wish to retract the withdrawal, is this possible?

 

I understand that this could be seen as disruptive to the case and I will accept the Judge’s decision if the withdrawal has to stand, however I would very much appreciate some consideration of my request.  I have spoken to the LRA on a number of occasions and they only advised me of the Ulster University Law Clinic yesterday.

 

I have now missed the first deadline which was to have agreed the legal and factual issues by 21 January.  However I am hoping that we may be able to catch up on the other deadlines, or even be able to amend the Schedule?

 

Again, apologies for any disruption that I have caused at this time.

 

Regards.

Wendy”.

 

6.            A Case Management Discussion was held on 25 January 2019 at which the Employment Judge listed a Pre-Hearing Review to consider the following issues:-

 

(1)                      Does the email from the claimant’s representative on 14 January 2019 constitute a withdrawal of the claimant’s claim?

 

(2)        If so, should the claimant be permitted to withdraw that withdrawal?”

 

ISSUES

 

7.            At the Pre-Hearing Review, Mr Fee, BL confirmed the only issue for the tribunal is, does the email dated 14 January 2019 constitute a withdrawal?

 

8.            Mr Fee BL accepted the wording of the email dated 14 January 2019 is a clear withdrawal.  He did not argue that the wording of the withdrawal was in any way equivocal.  Mr Fee BL accepted that the claimant’s mother knew and understood she was withdrawing the claim.  His argument was that it did not constitute a withdrawal because the claimant had not given authority to her mother to withdraw the claim. 

 

9.            The issue of authority was first raised by the claimant’s representative at the Pre-Hearing Review.  It had not been raised by the claimant’s mother at the Case Management Discussion on 25 January 2019 or in any correspondence to the tribunal. 

 

FINDINGS OF FACT 

 

10.         The claimant suffers from Autism Spectrum Disorder as confirmed in her claim form to the tribunal.

 

11.         The claimant gave evidence at the Pre-hearing Review.  In summary, her evidence is that her mother was undertaking the case on her behalf and throughout until the Equality Commission came on record on 14 February 2019.  The claimant did not submit her claim form to the tribunal nor did she instruct her mother to submit the claim form.  She had “talked about it” with her mother and her mother had said that she was “going to take it into a case and she did it by herself”.  Her mother kept her up-to-date regarding the case.  She stated that whilst leaving the Case Management Discussion on 7 January 2019, her mother had said that she did not think she could go on with the case because she needed legal help and that she wanted to withdraw the case.  The claimant gave evidence that she responded by saying “no no no” to her mother.  The claimant understood that her mother was going to contact people by telephone to “try and find help”.  The claimant returned home from college one day and was informed by her mother that the tribunal case had been withdrawn.  The claimant’s evidence was that she was upset and angry as she did not want the case to be withdrawn.  It was the claimant’s evidence that “mum couldn’t afford legal help and that is why she withdrew it.” 

 

12.         There was no evidence before the tribunal in relation to the claimant’s capacity to give instructions or make decisions. 

 

 

13.         The plain wording of the email from the claimant’s mother dated 14 January 2019 confirms the reason for withdrawal was “based purely on the fact that I need legal assistance”.  Furthermore in her email dated 24 January 2019, the claimant’s mother wished to retract the withdrawal on the basis that:

 

“I have been advised by the LRA to contact the Ulster University Law Clinic which I have done.  They have stated that they will be able to offer legal assistance with my case.  I now wish to retract the withdrawal, is this possible?” 

 

14.         Throughout the Pre-Hearing Review the claimant’s mother was in attendance at the hearing.  It was surprising to the tribunal that the claimant’s mother did not give evidence on behalf of the claimant.  In light of the claimant’s argument that the withdrawal did not constitute a withdrawal because the claimant had not given authority for her mother to withdraw the claim, the tribunal considers that evidence from the claimant’s mother was central to this argument; namely the authority she had as the claimant’s named representative and specifically her authority to withdraw the claimant’s case.    

 

15.      As is clear from the claimant’s claim form, the record of proceedings of all Case Management Discussions and all email correspondence, the claimant’s mother was the claimant’s named representative throughout.  This is not in dispute.  The email confirms the reason the claimant’s mother withdrew the claim was due to her need to obtain assistance and her inability to afford a solicitor.  As per her email dated 24 January 2019, the claimant’s mother wished to retract the withdrawal as she was, at that time able to obtain assistance.  There was no evidence presented to the tribunal as to her understanding of what authority she had at any stage of these proceedings or in relation to withdrawal of the claim. 

 

THE LAW

 

16.      The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 provides as follows, insofar as is relevant to the matter to be determined:-  

 

Right to withdraw proceedings.

 

25        (1)         A claimant may withdraw all or part of his claim at any time.  This may be done either orally, at 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 Office of the Tribunals 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 respondent the claim is being withdrawn.

 

            (3)         The Secretary shall inform all other parties of the withdrawal.  Withdrawal takes effect on the day in which the Office of the Tribunals (in the case of written notifications) or the tribunal (in the

 

 

                          case of oral notification) receives notice of it.  Withdrawal does not affect proceedings as to costs, preparation time or and a wasted costs. 

 

            (4)         Where the whole or part of the claim is withdrawn, the proceedings or the relevant part of the proceedings so withdrawn are brought to an end against the respondent on that date and the tribunal or chairman shall dismiss the proceedings or the relevant part of the proceedings so withdrawn.  The claimant may not commence a further claim against the respondent for the same, or substantially the same, cause of action in the tribunal (unless the decision to dismiss is successfully reviewed or appealed). 

 

17.      Mr Fee BL referred the tribunal to Danny Loughran v Concentrix CVG Intelligent Contract Limited 5749/18.  However this tribunal case was an application under Rule 26 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, specifically Rules 34-37 on “Review of other Decisions”.  This Pre-Hearing Review is not an application for review under these provisions. 

 

18.         Khan v Haywood and Middleton Primary Care Trust [2006] IRLR 345 confirms that a tribunal has no jurisdiction to set aside a notice of withdrawal of a claim.  As per Wall LJ at paragraph 79:-

 

           “I agree with the chairman of the tribunal and the judge that the words “brought to an end” mean what they say.  Those particular proceedings have indeed been brought to an end and cannot be revived against a respondent”. 

 

19.         The case of Drysdale v Department of Transport (the Maritime and Coastguard Agency) [2014] EWCA Civ 1083 [2014] IRLR 892 confirmed this position and specifically considered the extent of a tribunal’s duty toward litigants who do not have legal representation, specifically in the context of the withdrawal of a claim at a hearing.  The issue in that case was whether the tribunal had taken adequate steps to ensure that the decision to withdraw the claim, announced by the claimant’s lay representative (his wife) at the end of the second day of the hearing had been a properly considered decision.  The Court of Appeal and the EAT both dismissed the claimant’s appeal. 

 

20.      The relevant commentary on this case in Harvey [P1 Practice and Direction paragraph 627.05] sets out the Court’s findings:

 

            “there were no further steps that the tribunal was obliged to have taken in the circumstances.  In the Court of Appeal, Barling J, with whose judgement Clarke and Arden LJJ agreed, held that tribunals have a wide margin of appreciation or discretion in such cases and that, as the particular steps to be taken will depend very much on the facts, no hard and fast rules can be laid down.  There is thus no general obligation on a tribunal to seek confirmation from a claimant that he or she intends to withdraw the claim, other than where there is clearly a dispute or failure of communication between a party and his representative, or “perhaps, in the event of an manifestly, inexplicable and irrational decision by a representative”.  Nor, other than in exceptional cases, is there any obligation on a tribunal to enquire into the reasons for the decision to withdraw.  Nor is there any general duty to adjourn the proceedings to enable the claimant and his representative to reflect further, though whether a tribunal should do so in a particular case is a “question of judgement falling squarely within the margin of discretion of the tribunal””.

 

21.      Judge Richardson in the Employment Appeal Tribunal at paragraph 77 stated as follows:-

 

                        “Whether the claimant agreed with the course which Mrs Drysdale took is not the same as the question whether she had authority to take the course.  There can be no general duty upon the ET to enquire as to whether a litigant agrees with the course taken by his duly appointed representative.  If the law were otherwise – and the ET was bound to enquire into the authority of a representative whenever the representative took a decision with which it thought the litigant might not agree – the practical effect would be considerable and undesirable.  It would in fact undermine a claimant’s right to be represented by a person of his choice.  A decision to withdraw can be communicated by a representative by email (as in De Silya); we do not think that the ET is under any duty to enquire into the authority of the representative to withdraw if the representative’s appointment is in no doubt.  Representatives of all kinds – legally qualified and unqualified – will be called upon during hearings to take decisions which may involve withdrawing claims or conceding points.  We do not think the ET is under any duty to enquire into the representatives’ authority to do so unless the claimant at the time disallows the authority”.  (Tribunal’s Emphasis).

                       

22.         In the Court of Appeal, Mr Justice Barling at paragraph 61 stated:-

 

                        “It is clear that the ET was under no obligation to enquire into the reasons for the decision to withdraw the claim, with either the appellant or his representative.  Other than in exceptional cases (which I do not attempt to define, as in view this is not one of them); such an enquiry would not only be unnecessary but also inappropriate: it could be construed as an invitation to disclose privileged material relating to the claimant’s view (or advice received) as to the merits of the claim and/or as an intervention which might well prejudice the interest of the other side.  In many cases it could also prejudice the interest of the claimant himself, who might be persuaded by the Court’s intervention to pursue an unmeritorious case he was otherwise minded to abandon”.

 

CONCLUSION

 

23.         In considering the above findings of fact and the legal principles as set out above, the tribunal finds there is a withdrawal for the purposes of Rule 25(1) in Schedule 1 of the Industrial Tribunals Constitution and Rules of Procedure Regulations 2005 based on the following:

 

(1)          the acceptance on behalf of the claimant that the email dated 14 January 2019 was a withdrawal and intended to be so;

 

(2)          the clear, unequivocal and unambiguous language of the email from the claimant’s mother dated 14 January 2019, and

 

(3)          the claimant’s evidence that throughout her claim, her mother was her named representative.

 

24.         As per Rule 25 of the Rules of Procedure set out above, a withdrawal takes effect on the day in which the Office of the Tribunal receives notices of it and where the whole or part of the claim is withdrawn the proceedings are brought to an end against the respondent on that date.  (Tribunal Emphasis).

 

25.      There is no provision in the Rules giving a tribunal the jurisdiction to reinstate a claim following a notice of withdrawal or a mechanism for seeking permission to continue with a withdrawn tribunal claim.  Furthermore as per Rule 24 “the tribunal or judge shall dismiss the proceedings” (Tribunal Emphasis) therefore the tribunal has no alternative but to dismiss the claimant’s claim upon her mother’s withdrawal in the email dated 14 January 2019. 

 

 

 

 

 

Employment Judge:

 

Date and place of hearing:  15 April 2019, Belfast.

 

Date decision recorded in register and issued to parties: