Appeal No. UKEAT/0353/12/KN

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 16 January 2013

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

THOMAS COOK AIRLINE SERVICES LTD	APPELLANT

MRS C WOLSTENHOLME (AS PERSONAL REPRESENTATIVE OF 	
MR DAVID WOLSTENHOLME)	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	DR STEPHEN HARDY
(of Counsel)
Instructed by:
Messrs Shoosmiths Solicitors
Waterfront House
Waterfront Plaza
35 Station Street
Nottingham
NG2 3DQ	
For the Respondent	MR PAUL WILSON
(of Counsel)
Instructed by:
Messrs Chadwick Lawrence Solicitors
2a Red Hall Crescent
Paragon Business Village
Wakefield
WF1 2DF	

SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal

Employment Tribunal proceedings withdrawn; High Court proceedings intimated.  Application to dismiss under ET R25(4) rejected by Employment Judge.  Respondent’s appeal dismissed.  New proceedings did not amount to an abuse.  Verdin considered.

HIS HONOUR JUDGE PETER CLARK 
Introduction
1.	This is an appeal by Thomas Cook Airline Services Limited, the Respondent before the Manchester Employment Tribunal, against the reserved Judgment of Employment Judge Wardle sitting alone at a PHR held on 19 March 2012 refusing the Respondent’s application under ET rule 25(4) to have dismissed the claim brought by the Claimant, Mrs Clare Wolstenholme as personal representative of David Wolstenholme, deceased, following its withdrawal.  That Judgment with reasons was promulgated on 23 April.

Background
2.	The deceased was employed by the Respondent as a pilot from 1 January 1999.  On 8 July 2009 he was arrested by the Police for drink driving.  Thereafter he did not return home nor did he report for work.  On 10 July, having contacted the Claimant, who had not seen him, the Respondent wrote and invited him to a disciplinary hearing on 15 July.  On 11 July the Claimant informed the Respondent that the Police had found the deceased on his houseboat in Nantwich.  He did not receive that letter and did not attend the disciplinary hearing so the Respondent wrote to him that day on 15 July stating that if he did not make contact they would assume that he had resigned.  His salary was not paid from that date.

3.	On 22 July the Claimant told the Respondent that the deceased had purchased a one-way ticket to Amsterdam.  On 13 August 2009 the deceased fell from a bridge in Amsterdam suffering serious injuries from which he never recovered.  He remained in a coma until his death on 28 May 2010.  Meanwhile on 30 July, the Respondent wrote to the deceased at his home address informing him that he had resigned from the employment or if not that he was being dismissed with immediate effect.  He never received the letter, the Judge found.  More to the point, it seems to me, since he remained in a coma between 13 July 2009 and his death on 28 May 2010 he was not capable of comprehending its content.

4.	On 19 October 2010 on the instructions of his trade union, BALPA, Thompsons solicitors lodged a claim form ET1 with the Employment Tribunal.  In that pleading it was alleged that the deceased’s employment terminated on 22 July 2009 and that such termination amounted to a dismissal by the Respondent.  The dismissal was said to be both unfair and wrongful (breach of contract).  The claim was for arrears of pay from 15 of 22 July 2009, notice pay and either reinstatement or compensation for unfair dismissal.

5.	The Tribunal proceedings were stayed pending rights of representation being granted to the Claimant.  New solicitors were then instructed by her.  On 29 November 2011 those solicitors withdrew the Tribunal proceedings by a letter to the ET, informing the Respondent of that course of action in a Letter before Action dated 5 December 2011.  In that letter the Claimant’s solicitors pointed out that the deceased was never in a position to give instructions to commence the Tribunal proceedings, asserted that his employment did not end until his death on 28 May 2010 and indicated claims for contractual sick pay between 15 July 2009 and his death amounting to just under £68,000, together with a claim for a death in service payment under the company pension scheme of £360,000.  

6.	In September 2012 a claim form was issued in the Leeds District Registry of the High Court claiming damages totalling £420,582 in line with the letter of 5 December 2011.  On 19 December 2011 the Respondent applied for the Tribunal proceedings to be dismissed under ET rule 25(4).  The application was opposed and came on for hearing before Employment Judge Wardle on 19 March 2012.  

The Tribunal Decision
7.	The Judge directed himself to the relevant passage in Harvey on Industrial Relations and Employment Law Volume 3 Division PI paragraph 627 dealing with dismissal of withdrawn proceedings under rule 25(4) see, reasons paragraph 16 and the questions posed by HHJ David Richardson in Verdin v Harrods Ltd [2006] IRLR 348 which the parties agreed applied in this case.  He formulated those questions at paragraph 18 in this way; is the withdrawing party intending to abandon the claim, if the withdrawing party is intending to resurrect the claim in fresh proceedings would it be an abuse of the process to allow that to occur?  If the answer to either of these questions is yes then it would be just to dismiss the proceedings.  If the answer to both of these questions is no it would be unjust to dismiss the proceedings.  That formulation is a citation taken directly from paragraph 39 of Verdin.

8.	Having considered the rival submissions of counsel, both of whom now appear before me, the Judge concluded that this case was factually similar to that of Mrs Verdin whose proceedings for breach of contract in the ET were withdrawn so that the same claim for damages in excess of the Tribunal’s maximum jurisdiction of £25,000, not altered since the 1994 Extension of Jurisdiction Order came into force, could be brought in the civil courts.  He apparently answered both the Verdin questions in the negative and dismissed the Respondent’s application.

The appeal
9.	This morning, by coincidence, I handed down our Judgment in Fox & Ors v Bassetlaw District Council UKEAT0274/12/SN.  That case also considered the provisions of ET rule 25(4) as amended by SI 2008/3240 with effect from 6 April 2008.  I provided copies to counsel for their observations in the present appeal.

10.	I note that at paragraph 15 of his reasons Employment Judge Wardle referred to rule 25(4) in its pre-amended form, as did Mr Hardy in his skeleton argument.  I shall therefore set out rule 25(4) in its present form for the avoidance of doubt:

“(4)	Where a claim is being withdrawn a Respondent may make an application to have the proceedings against him dismissed.  Such an application must be made by the Respondent in writing to the Employment Tribunal office within 28 days of the notice of the withdrawal being sent to the Respondent.  If the Respondent’s application is granted and the proceedings are dismissed the Claimant may not commence a further claim against the Respondent for the same or substantially the same cause of action unless the decision to dismiss is successfully reviewed or appealed.”

11.	Counsel did not disagree with my analysis of the law relating to rule 25(4) as set out in Fox at paragraphs 14 to 19.  However, the present case throws into sharp focus the passage from Judge Richardson’s Judgment in Verdin at paragraph 39 upon which the Employment Judge relied as he was invited to do by both parties.

12.	It is not appropriate to read any judgment of this Tribunal as if it were a statute and to focus on one word.  However, a question arises to whether in every case it is right to say that if the answer to either of the Verdin questions is yes then it will be just to dismiss the proceedings. 

13.	Take the present case on its facts; it may be said that the Claimant intended to abandon the ET claim on withdrawal.  However, the critical question is whether the fresh proceedings, insofar as they seek to resurrect a claim of breach of the contract of employment made between the parties would amount to an abuse of process.

14.	Applying our approach in Fox I am quite satisfied that in answering that question in the negative the Judge reached a permissible conclusion.  Just as in Verdin the claimant could not pursue her substantial claims for sick pay and a death in service payment in the ET given the £25,000 limit on awards.  To that extent it is not an abuse to discontinue the first proceedings in order to bring the second.  Further, unlike Fraser v Hlmad Ltd [2006] IRLR 687, the Claimant did not proceed to judgment on her breach of contract claim in the ET to the maximum allowed and then seek to proceed in the Civil Court for the balance of the claim, nor did she allow the ET proceedings to be dismissed under rule 25(4) as was the case under the equivalent rule in the 1993 Rules in Staffordshire County Council v Barber [1996] ICR 379 CA.  She met the abuse argument head on in resisting the Respondent’s application to dismiss.

15.	Specifically, I am satisfied that although the factual matrix is common to both sets of proceedings, the need to bring the breach of contract claim in the High Court arose (a) out of developments following institution of the original ET proceedings, particularly the death of the deceased, and; (b) the High Court claim proceeds on a wholly different basis.  In the form ET1 it was contended that the deceased was dismissed by the Respondent on 22 July 2009 whereas in the High Court proceedings it is alleged materially that his employment continued until his death on 28 May 2010.

16.	On this basis I return to the passage in Verdin at paragraph 39.  It seems to me that even if the first question is answered in the affirmative, that is the Claimant intended to abandon the ET claim, since the answer to the second abuse of process question is in the negative, the Judge was right to dismiss the Respondent’s application otherwise it would be at least arguable in the High Court proceedings that those claims would be barred by the effect of rule 25(4) as amended following dismissal in the Employment Tribunal.  An issue estoppel would operate against the Claimant in those circumstances in the High Court proceedings, whereas the effect of Employment Judge Wardle’s decision, which I uphold on appeal, is that the Respondent will be estopped from arguing in the High Court proceedings that those claims are an abuse of process.  That, in my judgment, is the proper outcome in the Respondent’s application to dismiss.

Conclusion
17.	It follows, albeit for slightly different reasons, that in my opinion the Judge’s decision was plainly and unarguably correct.  Accordingly, this appeal fails and is dismissed.