Preserving your right to claim elsewhere: new rule 52

By Charles Crow

Charles Crow considers how claimants can move their cases between the tribunal and the court without getting caught by the doctrine of estoppel.

It is not uncommon (due to the short limitation period and/or clients taking advice post-issuing an ET1) for the penny to drop that the issued discrimination (personal injury) and/or wrongful dismissal (worth more than £25,000) claim would be better proceeded within the County Court. The question then arises: how to extricate the client from the tribunal without falling foul of any of the various species of estoppel that would lead to a defence of ‘abuse of process’ in the County Court?

In the good old days, a helpful distinction had developed (enshrined and preserved in rule 25) between a plain withdrawal and a dismissal (upon withdrawal). Following the case of Lennon v Birmingham City Council [2001] IRLR 826 (CA), it was well known that a dismissal by the tribunal (even without a judicial determination, i.e. upon withdrawal) was likely to be sufficient to prevent the substance of that claim being revived in the County Court. Accordingly, claimants wishing to preserve that option sought withdrawal and opposed any application for dismissal. Verdin v Harrods [2006] IRLR 339 (EAT) confirmed that a withdrawal without dismissal would not give rise to an estoppel and emphasised that the questions to be addressed by tribunals deciding whether to dismiss or to allow a plain withdrawal were those highlighted in Ako v Rothschild Asset Management, namely: is the withdrawing party intending to abandon the claim? If the withdrawing party is intending to resurrect the claim in fresh proceedings, would it be an abuse of process to allow that to occur? (If the answer to both of those questions is yes, dismissal was appropriate.) This clearly involved the employment tribunal in deciding whether a subsequent claim would amount to an abuse…

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