Mr J Grandison v Saltire Facilities Management Ltd: 4103926/2023
JUDGMENT
The judgment of the Employment tribunal is that the claims of unfair dismissal, failure to pay a redundancy payment, breach of contract and failure to pay holiday pay are dismissed under Rule 52 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (the Rules).REASONS
[1]The claimant presented claims of unfair dismissal, failure to pay a redundancy payment, breach of contract and failure to pay holiday pay on 24 July 2023. At the point when the claim was presented, the claimant was represented by the CAB.[2]The case was set down for a final hearing to be conducted over three days on the 14, 15 and 16 November 2023. The first day of the Hearing was converted to an Open Preliminary Hearing (OPH) conducted by way of CVP to consider preliminary issue regarding with withdrawal of the claim and if relevant, strike out of the claim on the basis of failure to comply with Tribunal Orders.[3]Mr Maratos, consultant, appeared for the respondents. There was no appearance by the claimant. Notice of the Hearing had been sent to the claimant. The clerk of the Tribunal telephoned the claimant but was unable to obtain a response. A message was left on his telephone. In the absence of any explanation of the claimant’s absence, the Tribunal proceeded with the hearing.[4]The first matter the Tribunal considered was whether the claim had been withdrawn under Rule 51 of the Rules.[5]From the papers before the Tribunal, it was apparent that the claimant had emailed the Employment Tribunal ET1 submission ‘Do not reply’ email address on 27 July 2023 stating: “I would like to withdraw my claim”. The email was not immediately passed to the Tribunal administration dealing with the claim as it was sent to the ET1 submission do not reply email address.[6]The claim was served on the respondents on 28 July 2023.[7]As of 27 July 2023, the CAB continued to represent the claimant. They withdrew from acting for him on 24 August 2023.[8]This final hearing was then fixed.[9]The claimants email of 27 July then came to the attention of the Employment Judge who issued an instruction to the effect that that that claimant should confirm in writing by 13 November 2023 at 4pm whether there was any reason why the Tribunal should not treat his email of 27 July 2023 as a withdrawal of his claim under Rule 51, resulting in its dismissal under Rule 52.[10]No response was received from the claimant. In terms of Rule 51 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (the Rules) when a claimant informs the tribunal either in writing or in the course of a hearing that a claim or part of it is to be withdrawn, the claim or part of it comes to an end. In terms of Rule 52 of the Rules where a claim or part of it has been withdrawn, the tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same or substantially the same complaint) unless the Tribunal believes that to issue such a judgment would not be in the interests of justice.[11]The language of the claimant’s email of 27 July 2023 is unequivocal in that it states that it is the claimant’s intention to withdraw his claim. Once intimated, a withdrawal cannot be retracted. This is the case even if the claim is not dismissed immediately following withdrawal. There is nothing before the Tribunal to suggest that that withdrawal should not be actioned.[12]In these circumstances, the consequences of the claimant’s withdrawal of the claims are that the claim is dismissed under Rule 52 of the Rules.