ANDREW DAY v GLENN JOHNSON [2000] UKEAT 70_99_1301
[1]APPEARANCES For the Appellant Appellant neither present nor represented HIS HONOUR JUDGE SMITH QC This is an appeal by Mr Day, who was the employer, in relation to a decision of the Employment Tribunal sitting at Birmingham on 17 th November 1998, whereby the Tribunal held that the Applicant before them, Mr Johnson, had been unfairly dismissed by Mr Day, who is Andrew Day, trading as Day 2 Day Couriers on the grounds that the dismissal was unfair because there was in fact no redundancy situation. Now there was an appeal by Mr Day against that decision, and leave was given by the Employment Tribunal on 5 th May 1999 when the Tribunal ordered that the appeal be allowed to proceed to a full hearing and leave was given to amend the notice of appeal and there was a very helpful judgment from the Employment Appeal Tribunal on that occasion. However, what has now occurred is that by his letter to the Registrar of the Employment Appeal Tribunal, dated 18 th December 1999, there is an unequivocal withdrawal by the subject to the leave of this Employment Appeal Tribunal by Mr Day in these terms: "Dear Sir, I am writing to ask you to withdraw my application for an Appeal (ref.Employment Appeal Tribunal/70/99/DA) and to cancel the appeal hearing which was set for January/13 th /2000. I would be grateful if you could advise the respondent Mr Johnson of the withdrawal and that I will be writing to him shortly to advise him of how I am going to pay him and over what period".[2]Mr Johnson has of course, already been written to by the Registrar by letter dated 4 th January 2000, passing on the information that the Appellant wishes to withdraw the appeal and asking Mr Johnson to confirm, by return post or fax, whether he consented to the application to withdraw. We have been told, myself in particular, by the Registrar's representative, this morning that although he has not responded in writing, Mr Johnson has orally confirmed that he does not oppose the application to withdraw the appeal. In those circumstances, although the formalities have perhaps not been strictly complied with under the rules, I consider that the proper course here is to give leave to Mr Day to withdraw the appeal and to dismiss the appeal in the light of his withdrawal, so that is the order in which the Employment Appeal Tribunal make in relation to this appeal. Leave is given to withdraw it and it stands dismissed.