Mr J Rozario v J P Morgan Europe Ltd: 8000773/2025
JUDGMENT
The claimant’s application for reconsideration of the judgment dated 8 July 2025 dismissing his claim is granted and the judgment is revoked. The claim should now be relisted for a preliminary hearing on the question of time bar.REASONS
[1]The claimant lodged a claim on 30 March 2025 claiming that he had been unfairly dismissed. The claimant had been dismissed on 8 October 2024. The respondent’s position was that the claimant had been fairly dismissed by reason of conduct. In addition, it was submitted that the Tribunal had no jurisdiction to determine the claim as it had been lodged out of time.[2]Th claimant lodged an identical claim (8000761/2025) and as parties had no objection to these claims being combined, a Combining Order was issued on 23 ETZ4(WR) May 2025. The claimant subsequently withdrew the second claim, and this was dismissed in a judgment dated 16 June 2025.[3]A Preliminary Hearing was listed for 9 July to consider whether the Tribunal had jurisdiction to determine the claim. The respondent lodged a joint bundle for the hearing on 4 July.[4]The claimant sent an email to the Tribunal on 8 July stating “Due to my circumstances I would like to withdraw the above claim set for hearing for 9th July 2025. I appreciate your & other party’s support and correspondence in due course.” The claimant then sent a further email within the hour of the first email stating “I am sorry that mistakenly sent the withdrawal mail thinking that I have to withdraw when the employer has agreed today for early conciliation. However, I would like to keep it/hold the tribunal until the early conciliation is complete. Apologies for that.”[5]However, the claim was dismissed under rule 51 by judgment dated 8 July and parties were informed that the hearing listed for 9 July had been cancelled.[6]The claimant wrote on 10 July stating that he had mistakenly withdrawn the case and that he and the respondent had agreed for conciliation and that “ACAS won’t be able to act as mediator unless the case is live in the Tribunal, do I have to make a new claim to the Tribunal within 14 days from the day of dismissal of the case on 8th July?”[7]The claimant was directed to the terms of the letter sent with the dismissal of his claim by the Tribunal on 11 July. He then wrote on 12 July stating that the respondent “made an offer and I accepted the offer. And because of the offer, I thought I needed to withdraw the claim to settle a conciliation/outside the tribunal. After a discussion with ACAS, the mediator, I have been advised that the claim has to be live for them to act as a mediator. Therefore I would like to appeal the case to be retracted and live again to proceed with the completion outside the tribunal. Please consider the claim to retracted and live again.” The claimant enclosed an email from ACAS setting out the position.[8]The claimant was informed that his application for reconsideration had not been refused and invited the respondent to make any response by 17 July.[9]The respondent objected to the application on the basis that the claimant’s application was unclear and he had not provided evidence supporting it.[10]The Tribunal wrote to parties on 21 July indicating that the matter would be determined in chambers and that parties should submit any written representations they wished to rely on within 14 days of the date of the letter.[11]No further written representations were received from either party. Discussion and decision[12]Rule 51 states Where a claim, or part of it, has been withdrawn under rule 50 (end of claim), the Tribunal must issue a judgment dismissing it (which means that the party advancing it may not commence a further claim against the party responding or replying to it raising the same, or substantially the same, complaint) unless—(a) the party advancing the claim has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so, or(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.[13]The claimant withdrew his claim in unequivocal terms. He did so immediately prior to a preliminary hearing to determine whether the Tribunal had jurisdiction to consider his claim as on the face of it, it had been lodged out of time. As the claimant withdrew his claim, the Tribunal was bound to issue a judgment dismissing it. There was no discretion to the Tribunal in that regard.[14]However, the claimant’s subsequent email was treated as an application to reconsider that judgment. In terms of rule 68 a judgment will only be reconsidered where it is “necessary in the interests of justice to do so”. The Tribunal is afforded a broad discretion in that regard (see for instance Outasight VB Ltd v Brown 2015 ICR D11.). However, the Tribunal’s discretion must be exercised judicially and therefore have regard not just to the interests of the party seeking the reconsideration but also the other party to the action and the public interest more generally in relation to the finality of litigation.[15]The claimant’s position in this case is that he withdrew his claim as a result of a misunderstanding. He has provided evidence from ACAS in the form of an email that they are not able to conciliate without there being a live case.[16]While a reconsideration of this claim would result in prejudice to the respondent as it will be required to attend a rescheduled preliminary hearing, the Tribunal is mindful that the claimant was unrepresented and that the respondent had already lodged a bundle for use at that hearing. While the respondent has objected to the reconsideration application, it has not sought to suggest that the claimant has misrepresented the position.[17]Taking these factors into account and in particular that the claimant is unrepresented, that he withdrew his claim on the basis of a misunderstanding and that he brought this to the attention of the Tribunal within an hour of having withdrawn his claim, the Tribunal is satisfied that it would be in the interests of justice to reconsider the judgment dismissing his claim and to revoke that judgment.[18]The case should now be relisted for a preliminary hearing on the question of time bar.