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  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  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…
If you are registered and logged in to the site, click on the link below to read the rest of the No5 Chambers briefing. If not, please register or sign in with your details below.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from No5 Chambers
News from The Lawyer
Briefings from No5 Chambers
There’s less Employment Tribunal advocacy work around now, but one area developing fast is investigations.
Operation Elveden was prompted by evidence heard at the Leveson Inquiry which suggested there was a culture of tabloid newspapers paying public officials for stories.