if a claim to an employment tribunal is withdrawn in a genuine attempt to remedy omissions, the fact that the claim is formally dismissed by the employment tribunal will not mean that the "issue estoppel" and "res judicata" rules prevent the corrected claim going forward.

For relevant general notes see Employment Appeal Tribunal/jurisdiction/estoppel and res judicata

Outline facts

Mrs Ako lodged an unfair dismissal and race discrimination claim against Rothschild Asset Management Ltd at the Stratford East Employment Tribunal on 17th June 1999. After seeking advice from the CRE, she realised a claim should also have been brought against a possible transferee under the TUPE regulations (see notes at Transfer of business or undertaking/who to sue? ). She checked a law book in the library of the college where she was studying law, which indicated that a second application could be made after the withdrawal of an application but the book was out of date (published 1980) and quoted old authorities. She then wrote to the tribunal on 28th June 1999 to withdraw her first claim and on 8th July 1999 issued a new claim against both Rothschild and the putative transferee.

In the meantime, on 2nd July 1999 the tribunal issued a standard form order that "The application is dismissed on withdrawal by the applicant."

The Employment Tribunal hearing the matter as a preliminary issue unanimously held that Ms Ako’s claim against Rothschild had already been disposed of judicially and that cause of action estoppel prevented the claim from being pursued.

Ms Ako appealed to the Employment Appeal Tribunal which allowed her appeal on 8th February 2001. Rothschild appealed to the Court of Appeal .

Decision

Mrs Ako won again.

The Court of Appeal upheld the EAT decision. The Court of Appeal held that a tribunal in circumstances such as the present should examine the factual matrix to decide whether an Applicant intended to abandon a claim. If she had intended to abandon it, that would end the matter under principles of issue estoppel. The reason, eg being wrongly advised as to the law, is irrelevant.

However, in this case, Mrs Ako had not intended to abandon her claim. The position was similar to that in Sajid v Chowdhury CA 2001 EWCA Civ 1684, Court of Appeal in which an Applicant who withdrew his tribunal claim had expressly reserved the right in the IT1 to re-issue his breach of contract claim in the High Court was allowed to do so.

emplaw editor's note:-

In 2004 a new rule was introduced (see Procedure of Employment Tribunals/2004 rules/rule 25 - right to withdraw proceedings ). Under this 2004 rule a claimant can withdraw his claim without the claim being dismissed. In a case in 2007 the EAT explained that the decision of the Court of Appeal noted above turned on the absence of any procedure in the Employment Tribunal Rules, prior to 2004, for withdrawing a claim without dismissing it. Given the new 2004 rules, the position post 2004 is that when proceedings in an employment tribunal are withdrawn and dismissed by formal order of the tribunal a claimant cannot bring further proceedings based on the same cause of action by asserting that he always intended to bring a second claim; in such circumstances the only remedy available is to apply for a review of the order of dismissal (see British Association for Shooting and Conservation v Cokayne EAT 2007 , reported at [2008] ICR 185).