Mr M A Rao v Smithers MSE Ltd: 1300024/2025 and 1300032/2025

EMPLOYMENT TRIBUNALS

Case No 1300024/2025, 1300032/2025

Between

Mr. M A RaoClaimant

Smithers MSE LimitedRespondent

Before

Employment Judge Faulkner

Date 17 July 2025

JUDGMENT

[1]Claim 1300024/2025 is dismissed in its entirety upon withdrawal.

[2]Any complaint within Claim 1300032/2025 of protected disclosure detriment contrary to section 47B of the Employment Rights Act 1996 is also dismissed upon withdrawal.

[3]The remaining complaints within Claim 1300032/2025 are unaffected by this Judgment.

REASONS

[1]Claim 1300024/2025 (“Claim 1”) was submitted on 8 January 2025; Claim 1300032/2025 (“Claim 2”) was submitted on 9 January 2025. The Particulars of Claim attached to Claim 2 replicated those attached to Claim 1 and added to them.

[2]Both Claims were formally accepted by the Tribunal. In correspondence prior to a Telephone Case Management Hearing before me on 4 July 2025, the Respondent contended that because it was largely a repeat of Claim 1, Claim 2 should be struck out as an abuse of process, with the Claimant seeking permission to amend Claim 1 should he wish to rely on the Particulars of Claim attached to Claim 2. The Claimant’s solicitors had written to the Tribunal before the Hearing stating that he wished to withdraw Claim 1 and continue with Claim 2.

[3]The Respondent, represented at the Hearing on 4 July by Ms. van den Berg of Counsel, was prepared to be pragmatic, focusing on using the Hearing to properly identify the Claimant’s complaints, and was therefore content to allow him to proceed with Claim 2 with the more detailed Particulars of Claim attached to it.

[4]After some discussion, and at my urging that it was both the correct and (for the Claimant) safest way to proceed – this was on the basis that it would prevent any argument by the Respondent that with Claim 1 dismissed, it maintained that Claim 2 should be struck out as an abuse of process – the parties agreed to the following: 4.1. The Claimant should be permitted to resile from his withdrawal of Claim 1. 4.2. Claim 2 should be dismissed. 4.3. Claim 1 should be amended by substitution of the Particulars of Claim from Claim 2, which are defended by the Response and Grounds of Resistance submitted for Claim 2.

[5]Having reflected on that approach following the Hearing, I concluded that I did not think it correct. This is because when discussing the matter with the parties I had overlooked the effect of rule 50 of The Employment Tribunal Procedure Rules 2024 which says that when a party informs the Tribunal that their claim is withdrawn, it comes to an end, subject to any application for costs – see also Griffiths v Scarista Ltd and others

[2025] EAT 36

[6]The correct way, in fact the only possible way, to proceed would thus be that which both parties had urged upon me in their brief submissions, namely that Claim 1 should stand withdrawn and be dismissed under rule 51 upon withdrawal, leaving Claim 2 to stand in its own right as the Claimant’s Claim, with the Respondent’s Grounds of Resistance being those provided for that Claim.

[7]A letter was sent to the parties on 9 July 2025 outlining my proposal of my own volition and in the interests of justice to reconsider the judgment announced orally at the Hearing on 4 July (though not at any point confirmed to the parties in writing). My provisional view was that I should vary or revoke it so that Claim 2 was not dismissed. I would then dismiss Claim 1 following withdrawal. I also proposed that to put the position beyond doubt, I would record in the Case Management Orders that I refuse any application by the Respondent for a public preliminary hearing to determine whether Claim 2 should be struck out as an abuse of process. I made clear that of course this last point would not form part of any Judgment following reconsideration.

[8]My provisional view was also that no hearing was required to reconsider the judgment.

[9]The parties were given until 4.00 pm on 15 July 2025 to comment on my proposal. The Respondent’s solicitors wrote on 15 July. The material part of their email said, “We confirm that the Respondent's position is that the Judge's reconsideration can proceed without a further hearing”. I take that to mean not only that there was no request for a hearing, but also that the Respondent did not oppose what I had proposed. The Claimant’s solicitors have not replied to the letter. Again therefore, I take it that the Claimant has no objection to my proposals.

[10]On that basis, and for the reasons set out above, the Judgment given orally at the Hearing on 4 July 2025 is revoked. Claim 2 is thus reinstated. I have issued a separate Judgment dismissing Claim 1 in its entirety and those elements of Claim 2 comprising complaints of protected disclosure detriment, which were also withdrawn. Approved by: