Dismissal or withdrawal?

Posted: 20th November 2013

UndergroundThe Employment Appeal Tribunal (EAT) has drawn a crucial distinction between ‘withdrawal’ and ‘dismissal’ of a claim. The importance of the point lay in the fact that the latter would have precluded pursuit of a claim based on the same facts in any other forum.

A London Underground worker had sought a lump sum payment from the Transport for London Pension Scheme on the basis that he had lost his job due to medical incapacity after falling victim to an assault at work. He had launched employment tribunal proceedings, seeking a ruling to that effect.

At the outset of the case, his legal team conceded that the tribunal had no power to hear his claim as the pension scheme had never been his employer. The claim was withdrawn on the basis that the worker would instead seek a remedy through the civil courts. However, on the pension scheme’s application, the tribunal went on to formally dismiss the claim on the basis that it had been misconceived.

The dismissal of the claim acted as a bar on the worker bringing fresh proceedings based on the same facts in any forum. Wishing to avoid that grave consequence, his lawyers sought amendment of the record to show that the claim had been withdrawn, rather than dismissed.

The EAT described as ‘wholly misconceived’ the worker’s plea that the tribunal had no power to dismiss his claim. However, it acknowledged that the issue of whether it was right to record a formal dismissal was ‘a quite separate matter’. Allowing the worker’s appeal, the EAT found that, on the facts of the case, it would not be an abuse of process for the worker to pursue his claim in another forum and that it would be unjust to bar him from doing so.