Case No 4101044/2025Venue ChambersHearing 21 November 2025
Between
Ms Rachel StirlingClaimantScotrail Trains LtdRespondent
Before
Employment Judge O’DonnellDate 25 November 2025
JUDGMENT
The judgment of the Employment Tribunal is that the claim, having been withdrawn, is dismissed under Rule 51 of the Tribunal Rules of Procedure 2024.
REASONS
[1]The present hearing has been set to consider afresh a decision taken by the legal officers to dismiss the claim under Rule 51 of the Tribunal Rules of Procedure 2024.[2]The relevant facts of the case are not in dispute:a. The claimant lodged her ET1 with the Tribunal on 25 May 2025 alleging unfair dismissal and a whistleblowing claim.b. The respondent lodged an ET3 on 25 June 2025 opposing the claims.c. On 1 July 2025, the claimant emailed the Scottish Courts and Tribunal Service (SCTS) asking them to send her a form to withdraw her claim. SCTS does not administer the Employment Tribunal and so they forwarded the email to His Majesty’s Court and Tribunal Service (HMCTS) which does administer the Employment Tribunal.d. On 8 July 2025, the Tribunal sent an email to the claimant asking her to confirm that she wishes to withdraw her claim under explanation that the claim will then be dismissed bringing it to an end. The email goes on to explain that there is no form to complete and written confirmation is sufficient.e. On the same day, the claimant emailed the Tribunal to confirm that she wished to withdraw her claim having received advice from a lawyer that it was not “a winning case”.f. A judgment dismissing the claim under Rule 51 was issued on 11 July 2025 by a legal officer.g. By email dated 21 July 2025 (again, sent to SCTS and forwarded by them to HMCTS), the claimant states that she had 14 days to “reinstate” her claim and wishes to do so because new evidence has come to light. The claimant does not explain what evidence has come to light, why it was relevant to the merits of her case, how it came to light and why it was not available earlier.h. On 4 August 2025, the Tribunal wrote to parties informing them that the claimant’s email of 21 July 2025 was being treated as an application for the decision to dismiss the claim to be considered afresh by an Employment Judge and the respondent was invited to make any comments.i. The respondent opposed the application by email dated 18 August 2025 setting out their reasons and the present hearing was listed to determine it. Parties were given until 14 November 2025 to provide any further submissions; neither party has made any further submissions.[3]The purpose of any judgment issued in a case is to bring finality and certainty to the relevant proceedings. This means that a party cannot simply revive a claim that has been determined by the Tribunal. A dismissal under Rule 51 is a determination of a claim.[4]The claimant has, on the face of it, misunderstood what was said in the judgment of 11 July 2025 about her right to ask for an Employment Judge to consider the decision afresh. She clearly considers that this is some form of “cooling off” period in which she can change her mind and revive her case. The Tribunal appreciates that the claimant is a party litigant who will not be familiar with the legal process and can see why the claimant may have come to this view. However, it is a mistaken view; the right to ask for the decision to be considered afresh is not a broad right for a claimant to revive their claim but, rather, a procedural safeguard in relation to the exercise of the powers of legal officers set out in Rule 7(2).[5]The Tribunal agrees with the submission of the respondent that, in considering the decision afresh, the Tribunal has to proceed on the basis of the information available to the legal officer when the original decision had been made.[6]There was been no cases in the higher courts which has looked at the power to consider afresh under Rule 7(2) and so there is no guidance as to whether an Employment Judge should consider afresh based only on the information available to the legal officer or whether a Judge can take account of new information. However, the Tribunal considers that the logical position is that considering afresh has to be a consideration of the same matter (and, therefore, the same information) on which the legal officer based their decision. If new information is available then the Tribunal considers that the proper vehicle for dealing with such a situation would be an application for reconsideration under Rule 68.[7]The information available at the time was that the claimant had decided to withdraw her claim after receiving legal advice and had been informed by the Tribunal that withdrawal would lead to her claim being dismissed and being brought to an end. The withdrawal was unequivocal; the claimant did not seek to reserve the right to pursue a claim in another forum nor did she set out anything from which the Tribunal could conclude that it was not in the interests of justice not to dismiss the claim.[8]In these circumstances, the Tribunal, having considered the matter afresh, dismisses the claim under Rule 51.[9]The Tribunal has given consideration to whether this application should be dealt with under Rule 68 as an application for reconsideration. The Tribunal notes that the hearing was listed only to determine an application under Rule 7(2) for the decision to be considered afresh but, after giving thought to the issue of whether the Tribunal should take account of new information when considering afresh, it has been the Tribunal’s view that an application based on new information is an application for reconsideration.[10]The Tribunal does have the power under Rule 68 to consider reconsideration of its own motion although it recognises that neither party has commented on this. The Tribunal notes that the claimant has made no submissions at all beyond the application of 21 July 2025.[11]If the Tribunal had been determining an application for reconsideration at the present hearing then it would have refused it for the following reasons.[12]The Tribunal has the power to reconsider a judgment under Rule 70 of the Tribunal Rules of Procedure. The only ground on which the Tribunal can reconsider is that it is in the interests of justice to do so.[13]As stated above, the purpose of any judgment issued in a case is to bring finality and certainty to the relevant proceedings. In particular, the final hearing of the case is the opportunity for parties to bring all the evidence which they consider relevant in supporting their case before the court or tribunal in question and to make all arguments as to why their case should succeed. As a result of this, there are limits on the scope for parties to seek to lead further evidence after a judgment has been issued.[14]Although there was not a final hearing in this case, the Tribunal considers that the principles relating to the introduction of new evidence after a judgment has been issued is germane to any question of whether the Rule 51 judgment should be set aside.[15]The test for whether new evidence should be allowed is set out in the case of Ladd v Marshall [1954] 3 All ER 745 which has been used in the Employment Tribunal since Wileman v Minilec Engineering Ltd [1988] IRLR 144:a. that the evidence could not have been obtained with reasonable diligence for use at the original hearing;b. that it is relevant and would probably have had an important influence on the hearing; andc. that it is apparently credible.[16]However, the Tribunal’s broad power to reconsider its judgment can mean that it could allow new evidence to be heard even where this test is not strictly met (Outasight VB Ltd v Brown UKEAT/0253/14).[17]As noted above, the claimant has provided no information about what new evidence she says emerged in the 10 days between the email withdrawing the claim and the judgment being issued to parties. She does not explain what difference this would have made to the advice she had received, why the evidence was not available and how it came to light. There is absolutely nothing from which the Tribunal could conclude that the test in Ladd was met or that setting aside the Rule 51 judgment was in the interests of justice.[18]For these reasons, the Tribunal would have refused any reconsideration application and would have dismissed the claim under Rule 51 if it was entitled to take account of new information when considering the decision afresh.[19]In any event, even if there had been some basis on which the Tribunal would have reached a different decision in relation to dismissing the claim or would have reconsidered that decision, there is a fundamental problem for the claimant in trying to revive her claim.[20]Rule 50 clearly and unambiguously states that where a claim is withdrawn then it is at an end. There is no power for the Tribunal to set aside an unequivocal withdrawal (Khan v Heywood and Middleton Primary Care Trust [2006] IRLR 793). Contrary to what the claimant believes there is no scope to revive or reinstate a claim that has been withdrawn.[21]The proceedings are, therefore, concluded and there is no scope for them to be revived by the claimant.