Tom Stenner-Evans
Posted on 11 Aug 2014

Employment Law Monday Update

Tribunal was correct to permit Lay Representative to withdraw Claim (CA)

Drysdale v Department of Transport (The Maritime and Coastguard Agency) [2014] EWCA Civ 1083

The Facts

Under the Employment Tribunal Rules of Procedure, a claimant can withdraw all or part of their claim at any time (including at a Hearing), either orally or in writing.

The Claimant brought claims in the Employment Tribunal for, amongst other things, constructive dismissal for making protected disclosures. He was represented by his wife, who was not legally qualified.

During the Hearing, the Claimant's wife advised the Tribunal that she wished to withdraw the Claimant's claim. Her application for the claim to be dismissed was granted. Subsequently, the Claimant applied for a review of the Tribunal's decision to dismiss his claim which was turned down by the Employment Appeal Tribunal. The Claimant appealed to the Court of Appeal, where the issue to be considered was whether the Tribunal had erred in law in failing to take adequate steps to ensure that the Claimant had taken a properly considered decision to withdraw the claim.

The Judgment

The Court of Appeal dismissed the Claimant's appeal. The Court commented that, whilst it is a desirable practice of Employment Tribunals to provide assistance to litigants in formulating and presenting their cases, the appropriate level of assistance or intervention depends upon the circumstances of each particular case. The Court considered that the Tribunal had been under no obligation to ask the Claimant about the reasons for the decision to withdraw the claim, despite the fact that he was not legally represented. Other than in exceptional cases, such a question would be unnecessary and inappropriate, and could be construed as an invitation to disclose privileged material relating to the Claimant's view as to the merits of the claim.

Tips for Employers

This case demonstrates that Employment Tribunals have a wide discretion when deciding what level of assistance is appropriate to provide to litigants in person and unqualified representatives.

Whistleblowing – Consultation on Provision of Annual Reports by Prescribed Persons

On 1 August 2014, the Government published a consultation on the annual reporting requirements of whistleblowing. This is further to the announcement that the Government intends to introduce a duty on prescribed persons to produce annual reports of the disclosures of information made to them by whistleblowers, without identifying the workers or employers concerned.

The consultation seeks views on how the duty should be implemented, including whether the Government's proposals for the information to be provided in reports are sufficient. The consultation closes on 30 September 2014.

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The consultation will be conducted in two stages and will close in Spring 2015. We will keep you updated.