H Singh v Ramgarhia Gurdwara Small Heath and Others: 1303973/2023
EMPLOYMENT TRIBUNALS
Case No 1303973/2023
Between
Harjit SinghClaimantRamgarhia Gurdwara Small Heath and 15 othersRespondent
Before
Employment Judge WedderspoonMr. Paul Wilson (instructed by counsel) for claimantMr. Ben Amunwa (instructed by counsel) for respondentDate 9 May 2025
JUDGMENT
[1]The order of dismissal of the claim is revoked.[2]The claimant’s claim remains withdrawn.
REASONS
[1]The purpose of the reconsideration hearing was to consider out of time the Tribunal judgment on 9 July 2024 to dismiss the claimant’s claim upon withdrawal and its judgment on 30 July 2024 declining to reconsider the dismissal of the claim.[2]The Tribunal was provided with two bundles of documents; one of 59 pages including two witness statements from the claimant (now signed) dated 15 July 2024 and 15 April 2025 and a second bundle of 17 pages.[3]Both parties had provided written submissions and supplemented these at the hearing with oral submissions.[4]The claimant attended the hearing today and the Tribunal was informed that he spoke limited English and he was a Punjabi speaker. There had been no application by either party for the claimant to give evidence or for a Punjabi interpreter to be in attendance. No evidence was called. The respondent stated that it had no positive case in respect of the allegations made by the claimant against his former lay representative, Chaman Singh (“CS”).[5]The Judge determined to sit alone to hear the reconsideration application. There were no objections by the parties. Background of claim[6]By claim form dated 4 May 2023 the claimant brought complaints of unlawful deductions from wages, failure to pay national minimum wage, holiday pay and notice pay. The claimant contacted ACAS for conciliation on 29 April 2023 and a certificate was issued on 2 May 2023.[7]The claimant was a Sikh priest a Giani in Punjabi at the respondent’s Gurdwara from October 2021 until March 2022. He lived in temple lodgings.[8]In the claimant's claim form at section 11 he named Mr. Chaman Singh (CS) as his lay representative. On 10 May 2023 CS provided his correspondence addressed to the Tribunal.[9]In its ET3 the respondent denied the claims in their entirety and following a preliminary hearing on 25 September 2023 (where the claimant was represented by CS) the Tribunal listed a full merits hearing to take place 8, 9 and 10 July 2024. Procedural History[10]Pursuant to the Tribunal’s directions the parties were ordered to file witness statements by 19 February 2024 which was extended by agreement between the parties to mid-June 2024.[11]On 25 June 2024 the respondent served its witness evidence on the claimant.[12]On 28 June 2024 the Tribunal wrote to the parties stating that witness statements must be exchanged by no later than 4 July 2024.[13]On 2 July 2024 the respondent objected to the claimant’s application requesting that the response be struck out because of non-compliance with the Tribunal order dated 25 September 2023, on the basis that the former case handler had discussed exchange of witness statements with the claimant’s representative around the end of May and the claimant’s representative had suggested there was no rush and provisionally suggested exchange of witness statements in mid- June.[14]On 4 July 2024 CS wrote to the Tribunal responding to the respondent’s correspondence indicating that the claimant intended to serve his witness statement before the hearing on 8 July 2024 and stated this may be allowable if the Tribunal so decides to allow it out of time.[15]On Friday 5 July 2024 CS wrote to the Tribunal stating “The claimant has withdrawn his claims the hearing on 8,9 and 10 July 2024 be cancelled the claimant requests this claim be dismissed it was signed by CS on behalf of the claimant”.[16]On 8 July 2024 the claimant attended the Tribunal on the first day of the three day trial. The claimant asked for the case to be re-listed and not cancelled and stated that his claim had been withdrawn without his authority or consent.[17]By Judgment dated 9 July 2024 Mr. A. Singh, Legal Officer dismissed the claims upon withdrawal.[18]Judge Wedderspoon confirmed by letter on the same date having considered claimant’s letter of 7 July 2024 the case was dismissed on withdrawal.[19]On 15 July 2024 the claimant produced a witness statement sent to the claimant’s solicitors RDC solicitors to the Tribunal on 17 July. The claimant requested that his case be reinstated because CS lacked authority to withdraw his claim before the Tribunal.[20]On 22 July 2024 RDC solicitors invited the Tribunal to reconsider its dismissal judgment.[21]On 30 July 2024 EJ Wedderspoon confirmed the dismissal of the claim and declined reconsideration.[22]On 15 August 2024 the claimant filed a notice of appeal in the EAT against the Tribunal’s judgments of 9 and 30 July 2024.[23]On 31 January 2025 Andrew Burns KC sitting as a Deputy Judge of the High Court granted permission to appeal the judgment to dismiss the claim on withdrawal and order to refuse the reconsider the dismissal judgment and ordered a substantive appeal hearing citing the cases of Bennett v Southwark LBC and Phipps v Priority Education Services. At paragraph 8 of Judge Burns KC’s order he stated “this order and the reason should be copied to EJ Wedderspoon for the employment Tribunal to consider of its own motion whether reconsideration out of time would be in the interests of justice in this claim”[24]On 1 April 2025 Judge Wedderspoon listed a reconsideration hearing; requiring the parties to attend in person and ordering the claimant to provide a witness statement as to why the claimant says the presumption of what was done in his name by his lay representative is rebutted and why he says he is entitled to disassociate himself from what the lay representative had done in in forming the Tribunal his case had settled. The respondent was ordered to provide written representations in response to the claimant's witness statement. The claimant’s witness statement evidence[25]The claimant states a few weeks before the hearing CS asked the claimant to book a hotel in Birmingham for three nights to attend the hearing on 8, 9 and 10 July 2024. He also requested payment of £176 for his fare and out of pocket expenses. On 24 June 2024 the claimant transferred the sum of £176 to CS and booked a hotel for both the claimant and CS for three nights and paid £258.50. The claimant booked his return seat with National Express and paid £23.10 On 26 June 2024. The claimant attached a copy of his bank statements showing payments to CS and confirmation of the coach booking and hotel booking.[26]The claimant made arrangements to travel to Birmingham on Sunday 7 July 2024 to attend the Tribunal on the morning of Monday 8 July 2024. CS did not attend the hotel on Sunday as arranged. The claimant says he telephoned him from the hotel. CS asked the claimant to pay him more money. The claimant told him he had already paid him a substantial amount of money and asked CS to attend the Tribunal and he would discuss further payment with him.[27]The claimant says that CS did not inform the claimant he had already sent a letter to the Tribunal on Friday 5 July 2024 withdrawing the claim.[28]The claimant attended the Tribunal on 8 July but CS, the interpreter and the respondents were not in attendance. He spoke to Tribunal clerk who could speak Punjabi and the claimant explained he was attending the hearing. The clerk confirmed that CS had sent a letter to the Tribunal to close the case. The claimant requested to see the judge. The claimant informed the clerk he had not given any authority to CS to withdraw his claim.[29]The claimant stated on 8 July 2024 he requested the Tribunal to relist his case and not to close it.[30]The claimant states that he “suspects” that CS knew most of the members of the respondent. He says he has paid CS £4,000. Following the dismissal judgment CS has refused to co-operate with the claimant’s solicitors. He says he had no knowledge of CS’s letter to the Tribunal dated 5 July 2024 and he did not instruct CS to withdraw his case. Submissions[31]The claimant submitted that correspondence between the parties in the run up to the hearing demonstrated that CS had been engaged on claimant's behalf up to 4 July 2024 and there had been no suggestion that the claimant’s claims might be withdrawn notwithstanding he had not been in a position to exchange a witness statement from the claimant.[32]The claimant submitted that the withdrawal of the claim was not clear, unequivocal and unambiguous because before Legal Officer Singh dismissed the claims on 9 July 2024 the Tribunal had received the letter written on behalf of the claimant on 8 July stating that the hearing had been cancelled by his representative without his permission. The inference to be drawn in the context is that the claimant had not authorised the withdrawal of his claims. The claimant invited the Tribunal to consider the claimant was represented by an unqualified lay representative. The withdrawal letter dated 5 July 2024 does not give an explanation as to why the claims were being withdrawn or why the claims should be dismissed. If the withdrawal had been at the beginning of a Tribunal hearing on 8 July it was likely that the claimant would have been asked if he intended to withdraw all of his claims and it would have been explained to him the significance of that. On 8 July when the final hearing had been scheduled to begin the claimant attended at the Tribunal and presented his letter pointing out that the case had been cancelled by his representative without his permission and asking for a new hearing date and that the case should not be closed. There was a close proximity in time between the withdrawal letter and the claimant’s letter dated 8 July and the Tribunal did not dismiss the claims under rule 51 until the following day on 9 July 2024. It was submitted that the proper conclusion should have been that the claim had not been withdrawn. The claimant referred to the case of Segor and submitted the claimant could be re-instated.[33]Further the claimant submitted that the claim should not be dismissed pursuant to rule 51(b) of the 2024 Rules because to issue such a dismissal judgment would not be in the interests of justice. The claimant submitted that the dismissal judgment acts as an issue of estoppel barring the claimant from bringing claims forward to a Tribunal or civil courts. The claimant submitted that his claim is not insignificant amounting to over £23,000; the withdrawal and request for the dismissal of the claimants was carried out without the claimants permission or knowledge so that the claimant had no knowledge as to what had happened until he arrived at the Tribunal on 8 July. Further claimant submitted the withdrawal and dismissal order if maintained is a complete windfall for the respondents and his claim has been disposed of without the Tribunal determining the merits or the claimant having a fair opportunity to present his case. It was submitted that if the dismissal judgment is set aside the claimant could reissue a new claim. The claimant acted quickly to seek reconsideration of the judgment following dismissal and the Tribunal should be sceptical about the prospect of any alternative remedy against CS as a lay representative in the absence of professional indemnity insurance; the claimant referred to the case of Phipps.[34]Additionally the claimant submitted that this was an exceptional case where the claimant can disassociate himself from the conduct of his representative. The Nepal case had no relevance as it was an Upper Immigration Tribunal claim to the Employment Tribunal. The claimant accepted that finality of litigation was important but that had to be balanced with the exceptional circumstances of this case and the claimant had had no opportunity to have his case heard by the Tribunal.[35]The respondent submitted pursuant to rule 51 of the Tribunal rules applicable at the time (now rule 50) it states where a party advancing a claim informs the Tribunal either in writing or in the course of a hearing that the claim or part of it is withdrawn the claim or part comes to an end subject to any application at the party responding or replying to the claim may make for a costs order preparation time order all wasted cost order.[36]The respondent submitted that the Tribunal's role here today was not to go beyond the withdrawal of the claim but to reconsider the dismissal judgment only.[37]Where a party gives notice of withdrawal the claim ends and cannot be revived and the Tribunal lacks jurisdiction to set aside the notice of withdrawal in accordance with the judgment of Lord Justice Wall in Khan v Heywood & Middleton Primary Care Trust 2007 ICR 24. It was stated at paragraph 79 the words brought to an end mean what they say. Those particular proceedings have indeed been brought to an end and cannot be revived against a respondent. That does not mean however that absent dismissal of fresh claim on the same facts cannot be made.[38]A party for present purposes necessarily includes a party acting of via LA or professional representative.[39]The respondent submitted notice of withdrawal must be clear unequivocal and unambiguous (see Segor) as it was here so the withdrawal is binding on the claimant and cannot be reopened and all the claim reinstated. The Tribunal does not have to seek confirmation from a party that they intend to withdraw following Drysdale and Campbell.[40]Further the respondent submitted pursuant to rule 51 of the 2024 rules the Tribunal is required to issue a judgment dismissing the claim unless at least one of two conditions are satisfied namely(a) the party wishes to reserve the right to bring such a such further claim find the Tribunal is satisfied there would be a legitimate reason for doing so(b) in the interest of justice.[41]In the case of Campbell the Tribunal can consider not only the circumstances at the time of the withdrawal but also the circumstances after the dismissal decision in exercising its discretion to reconsider a judgment dismissing a claim upon withdrawal and all relevant circumstances should be taken into account (following Neary v St. Albans School for Girls Governors (2010) ICR 473).[42]The respondent submitted that the claimant puts his case far too highly. He had not given evidence so that his evidence was not capable of challenge. The respondent took a neutral stance as to the alleged misconduct of CS. Prior to the Tribunal dismissing the claimant’s claim on withdrawal the Tribunal could have ventilated evidence to find out what had occurred between the claimant and CS by way of its flexible powers under the rules. It was submitted that none of the case law is on all fours with this particular case and this case was unusual and different. In respect of the Phipps case much will depend on the factual findings made by the Tribunal and the claimant simply had not presented enough material for the Tribunal to make a finding in favour that his lay representative was guilty of misconduct. Further it was submitted that there was insufficient evidence as to the implied or express instructions given to CS by the claimant; or the wide-ranging allegations made by the claimant against CS. It was a submitted relying upon the Upper Tier Immigration Tribunal case of Nepal (2004) UKIAT 00311 the lack of evidence of CS’s response to any to the claimant’s allegations about CS’s conduct is sufficient to dismiss the claimant’s reconsideration points. Further Ironsides Ray & Vials v Lindsay (1994) IRLR 318 highlighted the danger of encouraging disappointed litigants to seek to re-argue their cases by blaming their representatives. The claimant suggests only that he suspects CS knew most of the members of the respondent. Further it's not in the interests of justice to reconsider the case where the claimant was in breach of a Tribunal order of providing a witness statement. The respondent emphasised the importance of finality of litigation. He referred the Tribunal to the case of Outasight VB Limited v Brown UKEAT/0253/14. In summary the Tribunal has insufficient material to find that this is an exceptional case so that the claimant can disassociate himself from the actions of his lay representative.
The Law
[43]Notice of withdrawal must be clear unequivocal and unambiguous; see the case of Segor v Goodrich Actuation Systems Limited UKEAT/0145/11. If so the withdrawal is binding on a party and cannot be reopened and/or the claim reinstated.[44]In the Court of Appeal decision of Drysdale v Department of Transport (the Maritime and Coast Guard Agency) (2014) IRLR 892 it was held the Tribunal is under no obligations to seek confirmation from a party that they intend to withdraw the claim other than where there is a clear dispute or failure of communication between a party and their representative or possibly where the representatives decision to withdraw is inexplicable/irrational. Other than in exceptional cases there is no obligation on the Tribunal to inquire into the reasons for the withdrawal.[45]In the case of Campbell v OCS group UKEAT/0188/16 it was held that Tribunals are under no obligation to make inquiries as to the reasons or circumstances for a clear notice of withdrawal. Mrs Justice Simler (as she was then) concluded there is no jurisdiction for a notice of withdrawal to be rescinded or revoked and no scope it all under the rules for the claimant to revive those claims.[46]In the case of Phipps v Primary Education Services Limited 2023 ICR 1043 the Court of Appeal considered the general rule or principle that failings of a parties representative or not generally grounds for a reconsideration. A paragraph 31 of his judgment Lord Justice Bean having reviewed the authorities set out the following principles to be applied on application for reconsideration(1) the interests of justice test is broad textured and should not be so in crusted with case all that decisions are made by resort to phrases or labels drawn from the authorities rather than on a careful assessment of what justice requires. The ET has a wide discretion in such cases. But dealing with cases justly requires that they be dealt with in accordance with recognised principles.(2) Failings of the parties representative, professional or otherwise will not generally constitute a ground for review where the disappointed party has had an opportunity to argue the case and wishes to re argue it. This is because considerable weight must be given to the public interest in the finality of judicial decisions, both to protect the opposing party and to avoid overburdening the employment Tribunal system. A typical example of this is a case where a full hearing has been conducted but an argument was not put or a witness was not called. In most cases reconsideration will be refused on the grounds that the claimant has had a fair opportunity to put her case.(3) However the general rule that a party to Tribunal proceedings cannot rely on the default of her representative as the basis for an application for reconsideration is not a blanket rule. In the exceptional circumstance where a party has not had a fair opportunity to present her case, that is a significant procedural shortcoming which may be appropriately dealt with by reconsideration.
Conclusions
[47]The purpose of the reconsideration hearing was to determine whether the dismissal judgment should be varied/revoked or not. It is not within the purposes of this hearing for the Tribunal to enquire whether there was a withdrawal at all. In any event, the Tribunal having considered the letter of the claimant’s lay representative, CS on behalf of the claimant, dated Friday 5 July 2024 stating “The claimant has withdrawn his claims the hearing on 8,9 and 10 July 2024 be cancelled the claimant requests this claim be dismissed it was clear, unequivocal and unambiguous (following Segor v Goodrich Actuation Systems Limited UKEAT/0145/11) and the Tribunal determines it was under no duty (even with the letter produced by the claimant dated 8 July 2024) to question whether there was a valid withdrawal in these circumstances (see Drysdale v Department of Transport 2014 IRLR 892 and Campbell v OCS Group UKEAT/0188/16). The claimant’s submission on that point is rejected and also the submission that this Tribunal can simply reinstate the claim.[48]Pursuant to rule 51 of the 2024 Tribunal Rules, the Tribunal must issue a judgment dismissing the claim or part of it that has been withdrawn under Rule 50, unless(a) the party advancing the claim has expressed at the time of the withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be a legitimate reason for doing so or(b) Tribunal believes that to issue such a judgment would not be in the interests of justice.[49]At today's reconsideration hearing the Tribunal is seized of the issue as to whether it would not be in the interests of justice for the dismissal judgment to stand.[50]The respondent’s case is that the claimant’s evidence contained in two witness statements (and untested via cross examination) is insufficient to establish that in the interests of justice the dismissal judgment following withdrawal should be revoked. Neither party had applied to the Tribunal for the claimant to give live evidence and the claimant had not requested an interpreter. At the stage of issuing the dismissal judgment, the Tribunal determined it was unlikely that the Tribunal would have sought live evidence from the claimant in any event. The respondent has no positive case as against the allegations made by the claimant of the conduct of his lay representative.[51]The Tribunal in its discretion applies the weight it considers appropriate to the written signed witness statements of the claimant and takes into account that the claimant did attend the Tribunal on 8 July 2024 and communicated with a Tribunal clerk that he did not give authority to his representative to withdraw the claim and was assisted in putting that contention and his willingness to continue in his claim in a witness statement at the time. The Tribunal also takes into account the receipts of expenses attached to the claimant’s witness statement dated 15 July 2024 attaching a bank statement evidencing a payment to CS of £176; the claimant’s bus ticket payment of £23.10; and a document evidencing a hotel booking. Furthermore the claimant followed this up on 15 July 2024 when he produced a witness statement sent to the claimant’s solicitors RDC solicitors to the Tribunal on 17 July. The claimant requested that his case be reinstated because CS lacked authority to withdraw his claim before the Tribunal. On 22 July 2024 RDC solicitors invited the Tribunal to reconsider its dismissal judgment.[52]The Tribunal is satisfied on the balance of probabilities that the claimant has evidenced he intended to pursue his claim and did not give authority to his lay representative to withdraw his claim; the claimant had attended the Tribunal hearing on 8 July and was surprised to hear on his attendance that his lay representative had withdrawn the claim without his authority. The claimant has not had the opportunity of his claim being heard before the Tribunal. The Tribunal notes the respondent’s reliance upon the case of Nepal (2004) UKIAT 00311 but that case is from another jurisdiction and does not bind this Tribunal. The test applied in the Employment Tribunal is one of interests of justice, taking into account all of the relevant circumstances and the overriding objective.[53]The Tribunal takes into account that the higher courts have emphasised the public interest of finality in litigation as set out in HHJ Eady QC’s judgment (as she was then) in the case of Outasight VB Limited v Brown UKEAT/0253/14. Further, that the failings of the party’s representative will not generally constitute a ground for review particularly where the disappointed party has had an opportunity to argue the case and wishes to re argue it (see Phipps). However Lord Justice Bean envisaged in the case of Phipps there could be exceptional circumstances where a party has not had a fair opportunity to present their case which is a significant procedural shortcoming which may be appropriately dealt with by reconsideration. The Tribunal rejects the respondent’s submission that the claimant has failed to evidence his contentions about the lay representative acting outside his authority and the Tribunal determines that this case meets the high threshold of exceptional circumstances as identified in the case of Phipps.[54]In considering whether it is in the interests of justice for the dismissal judgment to stand the Tribunal takes into account as well all other relevant circumstances which includes Mr. Justice Bean’s comments in Phipps that the Tribunal should be sceptical as to the recourse of a claimant against a lay representative who will not have professional indemnity insurance. Furthermore the Tribunal takes cognisance that the claimant was in breach of the Tribunal order for the provision of a witness statement (although the claimant states he was unaware of the updated position from his lay representative) and his claim may have been struck out on that basis. The claimant does only suspects that CS knew most of the members of the respondent but that is of limited significance; the important points here is that the claimant had not authorised his lay representative to withdraw his claim and has not had the opportunity of having his case aired before the Tribunal.[55]If the dismissal judgment is revoked the respondent may face another claim by the claimant. At present the respondent has obtained a windfall win because the claim has been dismissed on withdrawal. The respondent was ready to proceed with the claim as evidenced by its exchange of a bundle and witness statements at the end of June 2024 and there is no evidence to suggest that it is prejudiced if the claimant was to bring a further claim if it is permitted to proceed. The respondent raised in the hearing that it is likely to seek a strike out and costs against the claimant.[56]The Tribunal determined in all of the circumstances and in the interests of justice the dismissal judgment (and implicitly the refusal to reconsider) is set aside. Consequently the claim is not dismissed but remains withdrawn.