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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Drysdale v The Department of Transport (The Maritime And Coastguard Agency) [2014] EWCA Civ 1083 (31 July 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1083.html Cite as: [2015] ICR D2, [2014] EWCA Civ 1083

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge David Richardson, Mrs MY McArthur FCIPD, Ms G Mills CBE)
UKEAT/0171/12/LA

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st July 2014

Mr Justice Barling:

Introduction

1. On 18 October 2011, the second day of the hearing in the Employment Tribunal ("ET") of the Appellant's claim for unfair constructive dismissal, the Appellant's wife, Mrs Daniela Drysdale ("Mrs Drysdale"), who was, and is, the Appellant's lay representative, informed the ET that she wished to withdraw his claim. On the ET enquiring whether she was making an application for the Appellant's claim to be withdrawn, she said yes. The Respondent's counsel, Mr Jeremy Burns (who appears for the Respondent before us), then applied for the claim to be dismissed. After a short deliberation the ET unanimously granted the application. An order was also made requiring the Appellant to contribute towards the Respondent's costs.
2. The Appellant applied to the ET for a review of its decision (see paragraph 33 below), which was refused on 7 December 2011. On 28 March 2012 the Employment Appeal Tribunal ("EAT") (The Hon Mrs Justice Slade) granted the Appellant permission to appeal against the original decision of the ET. The EAT gave its judgment on 13 February 2013, dismissing the appeal. Permission to appeal that decision was refused on the papers, first by the EAT itself and then by a single Lord Justice. At a renewed oral hearing on 3 December 2013 Lord Justice Elias granted permission on the following ground:

"whether having regard in particular to the overriding objective and the fact that neither the claimant nor his representative were legally qualified, the Employment Tribunal erred in law in failing to take adequate steps to ensure that the claimant had taken a properly considered decision to withdraw the claim."

In his ruling Lord Justice Elias emphasised that he was granting permission only on this single limited point, and not on any of the other proposed grounds of appeal. That is the sole question now before us.

3. Before turning to that question, brief mention should be made of one other matter. In his skeleton argument for this appeal Mr Burns referred to section 9 of the Contempt of Court Act 1981 and submitted that the Appellant is in contempt of court by virtue of Mrs Drysdale and/or the Appellant having covertly recorded the proceedings in both the ET and the EAT without the permission of those tribunals. He pointed to the fact that the Appellant's substantive submissions rely upon very exact timings in relation to the hearing in the ET on 18 October 2011 and that these are obviously based on the recordings. Thus, it was argued, the instant appeal is part of a process enabled by information obtained in contempt of the lower tribunal then repeated in the EAT. The Court of Appeal should not afford the Appellant continuing access to a judicial process which he has seriously abused by those contempts.
4. Mrs Drysdale has made no secret of having made the recordings – indeed in correspondence with the Respondent's representatives she indicated an intention to rely upon the tapes in order to establish "serious discrepancies" between these recordings and the Respondent's statements at the EAT hearing.
5. However, at the outset of this appeal Mr Burns indicated that the Respondent did not intend to pursue this point. That seemed to us a sensible approach to take, the making of the recordings having been drawn to the attention of the EAT by the Respondent some time ago. The matter, therefore, need not concern us further.

Background to the Appellant's claims in the Employment Tribunal

6. Although the appeal is limited to the single point of law to which I have referred, in order to examine the point it is necessary to understand the factual and procedural context in which it arises.
7. The following is a brief and, I hope, uncontroversial summary of how this matter has come about.
8. The Appellant was employed by the Respondent as a marine surveyor with effect from 29 July 2000. Many years before that, in 1974, a trawler known as the Gaul had been lost with all its crew. There was an enquiry at the time and a further enquiry in 2004 after the wreck of the trawler had been discovered. The second enquiry reported in December 2004. The Appellant was dissatisfied with certain aspects of the report. He believed that certain hull fittings had design faults, details of which had not been properly presented to the second enquiry and which that enquiry had not recognised. He set out his concerns in a series of letters to the Respondent from July 2007. He also aired his concerns publicly. It was accepted by the Respondent that what the Appellant said in these letters amounted to public interest disclosures for the purposes of Part IVA and section 103A of the Employment Rights Act 1996 ("the 1996 Act"). These provisions are popularly known as the "whistle blowing" provisions of that Act.
9. The Appellant continued to work for the Respondent but in April 2009 he requested permission to work at home in order to assist Mrs Drysdale, who suffered from type 1 diabetes. His request was granted on a temporary basis, and this arrangement continued until 31 October 2009, when a further extension was refused by the Respondent on the grounds that it would not be tenable from an operational perspective. From then the Appellant was granted special unpaid leave until 4 January 2010, in order to enable him to make alternative arrangements for Mrs Drysdale's care. The Appellant returned to work on 8 January 2010 and once more asked to be allowed to work at home. This application was refused. The Appellant was then off work on sick leave, supported by a certificate for "stress at home". He remained on certified sick leave until he applied for voluntary early retirement, which was granted with effect from 15 July 2010.
10. Thereafter the Appellant began proceedings in the ET claiming, first, that he had been subjected to detriment contrary to section 47B on the 1996 Act by reason of making protected (public interest) disclosures, and second, that he had been constructively and unfairly dismissed contrary to section 103A of the 1996 Act, in that he had been dismissed wholly or principally for making protected disclosures. The latter claim required the ET to decide whether the Appellant was constructively dismissed, and if so whether the sole or principal reason for that dismissal was the making of the disclosures in question. The ET did not have to consider or decide whether those disclosures were or were not true.
11. By the time of the hearing in the ET with which we are concerned, the claim under section 47B had been held to be out of time, so that the ET had no jurisdiction to hear it. That ruling achieved finality when on a renewed application Lord Justice Mummery refused permission to appeal to the Court of Appeal.
12. Throughout all these proceedings up to and including the present appeal, Mrs Drysdale has acted as the Appellant's lay representative, writing letters, drafting applications, grounds of appeal and skeleton arguments, and appearing as an advocate on the Appellant's behalf before all the courts and tribunals involved. Mrs Drysdale impresses one as a highly intelligent and very articulate person who, although not legally qualified, has a better understanding of court procedures and substantive rules than many, indeed than most litigants in person or McKenzie friends.

The hearing in the ET on 17 and 18 October 2011

13. I now refer to what occurred at the substantive hearing of the Appellant's claim for unfair dismissal on 17 and 18 October 2011, which is central to the issue in the present appeal.
14. The order of events at the hearing can be gleaned from a number of sources. When granting permission to appeal to the EAT on 28 March 2012, Mrs Justice Slade took the view that the grounds of appeal on which she had granted permission would require findings to be made as to what had occurred at the hearing in the ET. She therefore made an order in the following terms (so far as relevant):

"…the Appellant must lodge…affidavits from him and his lay representative, Mrs Drysdale,… as to the circumstances in which the claim for unfair dismissal was withdrawn and whether or not that withdrawal was with the agreement and authority of the Appellant and the circumstances in which the claim was dismissed on withdrawal and whether the Appellant or his representative were present when the costs order was made and whether they had been notified that a costs order was to be considered.

Upon receipt by the [EAT] of such affidavits, … the [EAT] will ask the Employment Judge for comments in writing on the affidavits and on the following matters relating to the hearing on 18 October 2011 and the orders made:

(1) All the circumstances in which the claim for unfair dismissal was treated as withdrawn;

(2) Who sought to withdraw the claim and in what terms?

(3) If it was the Appellant's representative, in what condition did [she] appear to be when she sought to withdraw the claim?

(4) Was the Appellant asked to confirm that he wished to withdraw his claim?

(5) Were the Appellant or his representative present when the claim was dismissed?

(6) Were the Appellant or his representative told that a costs order was to be considered?

(7) Were the Appellant or his representative present when the application for costs was made?

The Respondent may if so advised… lodge with the [EAT]… an affidavit in response to those affidavits."

15. Unfortunately, the order of the ET on withdrawal of the claim had contained an error in its heading, which mentioned only the Employment Judge and omitted any reference to the two lay members who had sat with him. As a result the order of Mrs Justice Slade only sought the comments of the Employment Judge and not those lay members. This meant that their comments were not available in time for the substantive hearing of the appeal in the EAT. However, at that hearing it was agreed that the case need not be adjourned, and that after the hearing the lay members would be asked for their comments and once those comments had been received the parties would have an opportunity to put in written submissions to the EAT before it delivered its judgment.
16. Therefore, the EAT had before it the following accounts of what had happened at the ET hearing: affidavits by the Appellant and Mrs Drysdale, both dated 5 April 2012; an affidavit by Mr Burns, counsel for the Respondent, dated 13 April 2012; a statement dated 31 March 2012 by Employment Judge Cowling, who chaired the panel at the relevant ET hearing; a statement by Mr PT Bird, one of the two lay members of that panel, dated 16 September 2012; a statement by Mr David Potter, the other lay member, dated 6 September 2012; and a statement dated 4 October 2012 by the Appellant, commenting on the statements of the two lay members.
17. Although all the accounts are substantially consistent in the essentials, in view of the nature of the issue before us it is appropriate to set out verbatim some of the key elements of the different accounts.
18. First, I will set the scene. The hearing was listed for 2 days and was due to begin at 10am on 17 October 2011. Unfortunately it could not start on time because of the ET's other commitments. It seems that a start was made at about 12 noon. The dismissal of the Appellant from his employment was in issue (it will be recalled that the Appellant had requested voluntary early retirement) and so, in accordance with the normal practice, the Appellant gave evidence first. This was done, so far as evidence in chief is concerned, by the Appellant reading aloud from a comprehensive written witness statement, and by making reference to documents in the agreed bundle from time to time. The process took until close of play on 17 October. The next day the case resumed on time, with the Appellant concluding his evidence in chief in the course of the morning, and with cross-examination by Mr Burns getting under way before lunch.

The Appellant's affidavit

19. The Appellant's affidavit states:

"3. My cross-examination by Mr Burns had been very stressful and inflammatory- I had been accused of lying, defrauding my employer with bogus sick notes and abusing the Tribunal system amongst other things. Nevertheless I was relatively happy with the outcome of the cross-examination, because it was obvious that the respondent's case relied soley upon a false and fanciful interpretation of the facts and that the scenarios they had constructed did not accord with or resemble the truth.

4. The case resumed [after a short comfort break] at about 15.45 and thereafter my wife questioned me for about 40 minutes until the Judge intervened to query her as to the time she still needed to conclude her examination. She indicated that she still needed some 30 minutes to conclude; however, the Judge advised that the Court would only sit until 16.45.

5. My wife's examination of me had been very unsatisfactory as she was asking leading questions – one after another – despite the Judge's multiple interventions and directions. This surprised me as normally her approach and use of language is almost mathematical in its precision and this was definitely not happening here – she was obviously confused.

6. On realising that she only had about 10 minutes left to finish examining me, my wife, visibly agitated by this time, told the judge that it was hardly worthwhile to continue. The Judge invited her to continue with her examination and, in a further exchange, she learnt that it would be another 4 months before she would be able to put questions to the respondent's witnesses – a timescale that, at that time, seemed to her beyond our means.

7. She then quickly responded by saying that she would withdraw the application and, when asked by the Judge whether she wished to withdraw the claim, she said 'yes'.

8. Mr Burns immediately applied for the claim to be dismissed and, after a very brief consultation with the two other members of the panel, the Judge advised all present that the claim was marked as being withdrawn.

9. This all happened so quickly – it was over in a matter of seconds – that I did not have the opportunity to confer with my wife or express my views. I was still trying to work out the implications of her actions when the judge, without addressing me, decided to mark the case as withdrawn. I was confused and dissatisfied with that outcome. Although my representative (my wife) had authorisation to act on my behalf when fit – the withdrawal of the claim at that point in time was effected without my specific authority or agreement.

10. Immediately following the Judge's pronouncement regarding the withdrawal, Mr Burns jumped in and stated that he wished to apply for costs and, after being invited to apply for same by the judge, continued with his abusive allegations as to my motives and integrity in pursuing the claim.

11. Things started to get heated and my wife was obviously upset and extremely agitated; she then started to tidy away our papers and the Judge advised that it would be in our interests to sit down, listen to the costs application and respond to it. Whether there would have been any time for us to do that in a satisfactory manner, given that there was only 10 minutes or so of court time remaining and Mr Burns obviously still had a lot to say, is a moot point.

12. My wife then left the room and I followed her shortly thereafter – as I was worried about her condition – and in such haste that I left one of our document folders behind."

Mrs Drysdale's affidavit

20. Mrs Drysdale's affidavit states:

"2. At the end of the second day of hearing, when I was told by the Employment Judge that the time for re-examining the claimant was to be limited because the court could only sit until 16.45 pm, I stated that, perhaps, it was no point at all in my continuing to examine the claimant. After a long and stressful day spent seated on the chair and listening to the respondent's counsel aggressive cross-examination, having had my applications and objections refused, I was feeling ill and nervous and my vision was getting blurred, I could no longer concentrate, and I badly needed to go out and move around.

3. I said loudly that I thought (referring to the way the proceedings had been conducted from the beginning of the case) that that was not serious. The judge must have heard that and told me to continue in the time that was left, but I asked him what would happen with the examination of the respondent's three witnesses who were present at the hearing who had not yet been heard. The judge advised that they would be examined on the 20th of February – the date when the extension for the hearing had been scheduled.

4. I then immediately retorted that I would withdraw the application because we would not be in the area at the time of the re-scheduled hearing. The judge asked me if I wanted to withdraw the claim and I quickly said 'Yes'.

5. One and a half seconds later, the respondent's counsel said that he wanted to apply for the claim to be dismissed. The employment judge agreed with him, looked left and right towards the other two members of the panel and said something to them, then seven and a half seconds later, (that is nine seconds after I had confirmed my wish to withdraw the claim) cheerily announced that the claim was marked off as withdrawn. I remember that the judge's light hearted manner added to my irritation.

6. Upon this the respondent's counsel instantly advised that he also wished to apply for costs. Then, with the invitation of the tribunal, he started to expound his reasons for claiming costs – making accusations about the claimant's having had ulterior motives in bringing the claim and other inflammatory remarks.

7. I interrupted him and tried to reveal some sensitive documents. I do not recall what the claimant had been doing so far, but I saw him at that moment leaning over, trying to get hold of those documents and to prevent me from making them public.

8. The judge asked me to sit down and listen to the costs application. I said that we did not intend to pay anything towards costs. At this point, I had already started to pack away the claimant's papers and folders which I had been using at the hearing, while the respondent's counsel went on verbally provoking us and had become increasingly offensive.

9. Furious with the counsel's verbal abuse, I told him that he had said quite enough. My fury seemed to encourage him, as he then became even more insulting.

10. There was further controversy between me and the respondent's representative in respect of the merits of the case, with the judge asking me to listen to what the counsel had to say.

11. After listening for a few more seconds, I felt that I had had enough and I told the respondent's counsel that he was telling lies and being insolent, and I spelt out what I believe to be his ulterior motives, apart from representing his client. There was some commotion, I don't recall what the claimant was doing, but I believe that this was the moment when he started to react to what was happening and at what the respondent was saying, and I heard him mentioning something about our pet cats.

12. The judge told me to respond to what the counsel was alleging, but I replied that I did not wish to respond to the latter's insults.

13. The claimant then started to tell something about costs, but the judge did not allow him to continue, urging us to listen to the respondent's representative first. The counsel was arguing that as much as £33,000 was due to him in costs.

14. I believe that this was the stage where I left the room as I was starting to feel very ill and was wobbly. I remember turning my head and seeing the claimant who looked very upset. I think I was already in the corridor when I heard him saying from behind: "Thank you gentlemen for your time, thank you for your efforts; I'm sorry that we haven't come to a good resolution in this matter. Thank you!"

21. Mrs Drysdale also stated that once they were in their car she checked her blood glucose level and found it to be very high, requiring an immediate injection of insulin.

Mr Burns's affidavit

22. In his affidavit Mr Burns essentially agreed with the events as described by the Appellant and Mrs Drysdale, although he did not accept that he had been insulting abusive or provocative in any way. He went on to say:

"6… Mr Drysdale (and Mrs Drysdale on his behalf) were very annoyed during the hearing by my putting these matters to Mr Drysdale, during his cross-examination and when I referred again to these matters in the early stages of the subsequent costs application.

7. Mrs Drysdale was rude, abusive and disruptive not only to me but also to the Tribunal throughout the hearing and particularly at the end.

………

11. Who sought to withdraw the claim and in what terms? Mrs Drysdale did so. She who stated clearly and deliberately that the Claimant wished to withdraw the claim. After a pause the Tribunal judge then asked her to confirm that this was what the Claimant wanted, and she stated clearly that he did. The claim was then dismissed. Although I was not timing it, I do not agree that this took only the 10 seconds which Mrs Drysdale describes – it took place quickly but in a measured and unrushed fashion.

12. What condition did Mrs Drysdale appear to be in when she withdrew the claim? I saw no outward or visible sign of Mrs Drysdale being ill or suffering from any debility at any time. When she withdrew the claim she had just returned from a break allowed by the Tribunal judge, and had not asked for any further break. When she subsequently left the tribunal room during the costs application I thought she did so because she was angry that a costs application was being made and did not want to listen to it, rather than because she was feeling ill. She made no reference to illness.

13. Was Mr Drysdale asked to confirm that he wished to withdraw his claim? I cannot recall clearly whether or not he was asked separately by the judge. However from Mr Drysdale's demeanour it appeared to me that he was in complete agreement with what Mrs Drysdale was doing and he did not appear surprised or unhappy with it at all. My impression at the time was that the two of them must have discussed withdrawing the claim during the break from which they had just returned. I had no reason to doubt that Mr Drysdale was fully aware of what his wife was doing on his behalf and that he approved of it. Immediately before he had been responding in a perfectly coherent manner to the questions which Mrs Drysdale had been asking him by way of re-examination. About 5 minutes elapsed between the claim being dismissed and Mr and Mrs Drysdale departing from the tribunal room. During that time neither Mr nor Mrs Drysdale stated that they wanted to change their minds about having withdrawn the claim. On leaving the tribunal room Mr Drysdale made a statement – which is quoted more or less accurately in paragraph 14 of Mrs Drysdale's affidavit….at the time these words suggested to me that Mr Drysdale was aware that the claim had been withdrawn and dismissed."

The comments of the members of the ET

23. The account of Employment Judge Cowling is as follows:

"On the following morning, 18 October 2011, the Appellant concluded his evidence and he was then cross examined by Mr Burns. The Appellant handled himself confidently and gave considered and cogent responses to the questions he was asked by Mr Burns. The Tribunal took a routine break between 11.45 am and 11.55 am and broke for lunch from 1.05 pm to 2.05 pm. The cross examination of the Appellant resumed in the afternoon and concluded at 3.30 pm. At the request of the Appellant's wife there was then a short break. The Tribunal discussed amongst themselves whether the case could be completed in the time allocated. It had become patently obvious that a further hearing would be required to conclude the case. The Appellant was still giving evidence toward the end of the two day Hearing and three witnesses were in attendance to give evidence for the Respondent.

After the break this issue was raised with the parties. Mr Burns suggested that a further two days would be required which accorded with the Tribunal's own estimate. For the Appellant Mrs Drysdale expressed disappointment that the case would not be completed in the two days allocated. I explained to her that Mr Burns proposed to call three witnesses and that we would need to allow time for closing submissions and for the Tribunal to consider its judgment. In those circumstances I explained that the two day estimate was realistic.

Mrs Drysdale suggested that the case could continue the following day. I explained that other cases were already listed to commence the following day. After consulting with the parties and after checking with the Listing section it was found that the earliest two day Hearing was 20 and 21 February 2012. It was agreed that at the conclusion of the Hearing on 18 October 2011 the Hearing would be postponed part-heard to 20 and 21 February 2012. I explained to the parties that for administrative reasons we could not sit beyond 4.45 pm on 18 October 2011 after which the Hearing would be postponed part-heard to 20 and 21 February 2012 and that we hoped to concluded the Appellant's case by the end of the day.

After the break the Appellant was re-examined by his wife. Unfortunately Mrs Drysdale commenced her re-examination by putting a series of leading questions to her husband and I explained to her why that was inappropriate. At 4.35 pm I asked Mrs Drysdale how much longer she estimated her re-examination of the Appellant would take. I reminded her that we could only sit until 4.45 pm that day. She said "And then what?" I explained to her that the case would be postponed part-heard and that as agreed the Hearing would resume on 20 February 2012.

After stating that she did not want the case to be postponed and after declining an invitation from me to continue with her re-examination she then announced that she wished to withdraw the claim. I asked her whether or not it was her application for the claim to be withdrawn and she said yes. I looked at the Appellant and he did not demur. Mr Burns made application for the claim to be dismissed on withdrawal. The Tribunal did not retire but we discussed what had occurred. We unanimously concluded that the application to withdraw should be granted and I dismissed the claim.

Mr Burns made an application for costs. Whilst he was speaking the Appellant stood up and left the witness table to rejoin his wife. They both stood whilst Mr Burns continued with his application for costs. Mrs Drysdale then shouted "We are not paying anything". Still standing she began to gather up her file of papers. I urged her to return to her seat explaining that she would be given a chance to respond to Mr Burns' application for costs. She started shouting again. She said "I'm tired of hearing Mr Burns' voice". Mr Burns continued with his costs application and indicated that the Respondent had incurred costs to date of £33,900. Still standing Mrs Drysdale shouted "We are paying nothing". They both gathered up their remaining papers and left the room whilst Mr Burns continued with his costs application…..

.... Mrs Drysdale made the application to withdraw on behalf of the Appellant when it was explained that the case could not be completed that day. At that stage Mrs Drysdale was perfectly composed although disappointed that time constraints meant that the case could not be completed that day.

The Appellant was not directly asked to confirm that he wished to withdraw his claim. Throughout the proceedings Mrs Drysdale had been acting on behalf of and on the instructions of the Appellant. He sat at the witness desk listening to the exchanges between Tribunal, his wife and Mr Burns and raised no objection to his wife's application for the claim to be withdrawn. Both the Appellant and his representative were present when the claim was dismissed. They both left during the course of Mr Burn's costs application.... Clearly she was aware of the nature of the application although she sought constantly to interrupt it and left the room before the application was completed by Mr Burns. She ignored repeated requests from me to return to her seat so that she could hear the costs application and respond to it.

At all stages the Appellant and his Representative were aware that they were at liberty to request a break in the proceedings had they wished. The previous day the Appellant had been offered and took a twenty minute break and a request for a break was granted at the end of the cross-examination.

….At no stage throughout the two day Hearing did either the Appellant or his wife demonstrate that they had difficulty in expressing themselves or making their views known on any particular aspect of the case."

24. Mr Bird, one of the lay members, said:

"My notes indicate the claim was withdrawn at 16.35 and Mr and Mrs Drysdale left the tribunal room at 16.40."

He added that Mrs Drysdale had not complained of feeling unwell, and the Appellant had not indicated at any time that he disagreed with his wife's actions. When she withdrew the claim Mrs Drysdale

"was clearly angry, but she was in control and certainly articulate. There was no doubt in my mind that she was aware of the implications of what she was doing".

Mr Bird said that she was treated courteously and professionally by the ET. He also said

"I do not agree that Mr Burns's cross examination was "inflammatory" [or] "aggressive"."

25. Finally, Mr Potter, the other lay member, said:

"Mrs Drysdale on behalf of the claimant very clearly stated that she wished to withdraw the application on his behalf. The Judge asked her at least once to confirm that was what she wanted and she said it was....

We had been advised that Mrs Drysdale was a diabetic and this had featured in the evidence given by the claimant...... Mrs Drysdale was clearly angry and outspoken at the time the Hearing was ending but she did not, to my recollection, say she was unwell and needed a further break to recover or collect her senses.

I do not believe Mr Drysdale was specifically asked to confirm separately that he wished to withdraw his claim but throughout the Hearing Mrs Drysdale had made it clear, as she was entitled to do, that she was his representative and spoke on Mr Drysdale's behalf. More importantly perhaps, Mr Drysdale made no attempt to restrain or modify what Mrs Drysdale said even when the Judge asked her to confirm she was seeking to withdraw the claim."

26. As arranged, the Appellant sent to the EAT some comments on the lay members' statements. He took issue with some of the timings of events, as recalled by the lay members. He also stated that ET had "dismissed the claim in a rush….thus depriving him of any opportunity to object."
27. Despite this, it is clear that as between the various deponents and commentators, there is a very substantial measure of consensus about what happened at the hearing, at least so far as concern those aspects which are central to the present appeal. In view of this consensus, the EAT concluded that there was no need for oral evidence or cross-examination, and there had been no application by either side for such.

Relevant legislation

28. At the time of the hearing in 2011 the procedure before the ET was regulated by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 ("the 2004 Regulations"). These have since been replaced with effect from 29 July 2013. The 2004 Regulations made provision for an overriding objective in the following terms:

"3. Overriding objective

(1) The overriding objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals and [Employment Judges] to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable:—

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense.

(3) A tribunal or Employment Judge shall seek to give effect to the overriding objective when it or he:

(a) exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2, 3, 4, 5 and 6; or

(b) interprets these Regulations or any rule in Schedules 1, 2, 3, 4, 5 and 6.

(4) The parties shall assist the tribunal or the [Employment Judge] to further the overriding objective."

29. Representation before the ET is governed by section 6(1) of the 1996 Act which provides:

"6 Conduct of hearings

(1) A person may appear before an [employment tribunal] in person or be represented by—

(a) counsel or a solicitor,

(b) a representative of a trade union or an employers' association, or

(c) any other person whom he desires to represent him."

30. The 2004 Regulations contained, in Schedule 1, Employment Tribunal Rules of Procedure ("the Tribunal Rules"). It is not in dispute that these were applicable to the Appellant's claim, and to the hearing in the ET in October 2011.
31. Rule 14 of the Tribunal Rules dealt with the management of hearings, and provided, so far as relevant:

"(2) So far as it appears appropriate to do so, the Employment Judge or tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts.

(3) The Employment Judge or tribunal (as the case may be) shall make such enquiries of persons appearing before him or it and of witnesses as he or it considers appropriate and shall otherwise conduct the hearing in such manner as he or it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings."

32. Rule 25 of the Tribunal Rules governed a claimant's power to withdraw proceedings. It provided:

"25 Right to withdraw proceedings

(1) A claimant may withdraw all or part of his claim at any time – this may be done either orally at a hearing or in writing in accordance with paragraph (2).

(2) To withdraw a claim or part of one in writing the claimant must inform the Employment Tribunal Office of the claim or the parts of it which are to be withdrawn. Where there is more than one respondent the notification must specify against which respondents the claim is being withdrawn.

(3) The Secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date on which the Employment Tribunal Office (in the case of written notifications) or the tribunal (in the case of oral notification) receives notice of it and where the whole claim is withdrawn, subject to paragraph (4), proceedings are brought to an end against the relevant respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs.

(4) Where a claim has been 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).^[1]

(5) The time limit in paragraph (4) may be extended by [an Employment Judge] if he considers it just and equitable to do so."

33. Where an application to dismiss a claim was granted there would be a judgment under rule 28(1) of the Tribunal Rules, a judgment being the appropriate means of finally determining proceedings or an issue in proceedings by virtue of rule 28(1)(a). Rule 34 enabled such a judgment to be reviewed by the ET on various grounds, including the ground that the interests of justice require a review. As already mentioned, the Appellant's application for a review of the ET's dismissal of the claim on that ground in the present case was refused.

The parties' submissions

34. The main thrust of the Appellant's case, as clearly and succinctly set out in the skeleton argument settled by Mrs Drysdale for this appeal, is that the ET treated her as an experienced legal professional without consideration of how stressful a long day's hearing would be to someone who lacked courtroom experience and the professional detachment of a hired lawyer. As a result the ET

"accepted the withdrawal of his claim too quickly (ie in a matter of seconds) and dismissed the claim on the basis of the Appellant's representative's ill-tempered response, without asking the Appellant for confirmation, without giving him the time or the opportunity to react, or giving his representative the respite to calm down and make a properly considered decision, while allowing the Respondent's counsel to speak at length about costs."

The Appellant submits that:

"…the abrupt and heated manner of the withdrawal – which would have prompted any reasonable person to suspect that the withdrawal had not been the result of calculated, pre-meditated action, but an action taken in the heat of the moment – should have been good reason for the employment judge to suppose that the withdrawal did not reflect the [Appellant's] intention…..

The ET judge could recall that the Appellant's representative had been in the tribunal for over six hours, that she was tired and that she had asked for a break earlier…The Appellant's representative was tired, stressed and frustrated and, after the latest intervention by the tribunal, became ill-tempered – a situation exacerbated by her medical condition, well-known to the ET – and rashly abandoned the claim. Having noted the Appellant's representative was angry, the ET judge still asked her, not the [Appellant], to confirm the withdrawal. The ET judge asked for this confirmation immediately after the Appellant's representative had announced her decision to abandon the claim and then considered her retort as sufficient. Many people say a lot of intemperate things when they are angry….The ET did not take into account that, if one is angry, one is likely to make a rash decision…

….the ET failed to take account of the Appellant's (and his wife's) lack of legal training and experience…..while wrongly taking into account the apparent competence of their written communications with the tribunal and equating it to professional skill and experience. The ET also failed to take account of ….the Appellant's representative's medical condition, frustration and fatigue and consider that, in the circumstances, her decision was not likely to have been a properly considered one."

35. In support of these submissions Mrs Drysdale relied upon the requirements of the overriding objective of the ET to deal with claims justly and, so far as practicable, to ensure amongst other things that parties are on an equal footing.
36. In the present case the ET had not ensured that the parties were on an equal footing, as the Appellant was not given a proper opportunity to put his case, having regard to the fact that he did not have legal representation. The ET also failed to take into account the public interest, given the serious nature of the allegations which the Appellant was making against his previous employers, and which would not now be determined. Nor was proper account taken of the disproportionate prejudice and injustice which the Appellant would suffer as a result of the withdrawal of his claim, compared with the relatively small prejudice to the Respondent if the ET had dealt with the matter fairly. As a result of the withdrawal, all the time and expense of the hearings and appeals over the last several years would be wasted. These factors engaged another aspect of the overriding objective, namely that cases should be dealt with in a manner proportionate to their complexity and importance.
37. Mrs Drysdale submitted that the ET ought to have taken one or more of the following steps: asked the Appellant directly to confirm whether he agreed with the decision of his representative; adjourned until a later date or until the date when the hearing was due to resume; allowed the representative time to calm down and also allowed the Appellant the chance to think and speak; responded favourably to the Appellant's request for a review of the ET's decision to dismiss the claim upon withdrawal.
38. Mrs Drysdale placed reliance upon a number of authorities. Foremost amongst these was Gee v Shell UK Limited [2002] EWCA Civ 1479. Shell appealed to the Court of Appeal against a decision by the EAT to send an employee claimant's case back to be reheard by a differently constituted employment tribunal, on the ground that the original tribunal had placed unfair pressure on the claimant, causing her to withdraw her claim. The tribunal chairman had apparently given "a strong steer" that the claimant was at real risk of being on the wrong end of a substantial costs order if she went on with the case and failed. In his judgment Lord Justice Scott Baker said:

"21. In my judgment a tribunal must be particularly careful not to place unfair pressure on a litigant in person. A party who is legally represented has the opportunity for his representative to put any remarks by the tribunal in context. For example the legal representative can explain the circumstances in which a tribunal is entitled to and may make a costs order.

…

26. Against this background the "costs warnings" was unfair. It left [the claimant] in no doubt (and in my judgment would have left any reasonable litigant in person standing in her shoes in no doubt) that if she continued and lost she was at real risk of a substantial order for costs being made against her and that it might well be enforced against her house."

39. In his judgment in the same case Lord Justice Sedley said:

"While plainly there cannot be one rule or legal principle for litigants in person and another for those who are represented ….it does not follow that an employment tribunal is entitled to treat every party as if it had the strength of advice and representation which, for example, Shell (UK) Limited enjoyed in this case. Inexperienced lawyers may not be a match for experienced ones; lay representatives may not be a match for lawyers; some lawyers may not be a match for a clever litigant in person or an experienced lay representative. The tribunal's job, precisely because it cannot guarantee equality of arms, is to ensure equality of access to its processes for sometimes disparately powerful parties. This involves making a careful appraisal, case by case of the parties and their respective capabilities. It must also, however, involve ultimate equality of treatment, so that whoever presses on with a doomed case after due warning faces the same risk on costs." (See paragraph 35)

40. Similarly Lord Justice Simon Browne stated:

"40. The all important dividing line …was between on the one hand "robust, effective and fair case management" and on the other "inappropriate pressure and unfairness"….That line cannot be a sharp one: costs warnings cannot properly be characterised as having applied "inappropriate pressure" or as being "unfair" unless no reasonable tribunal would have given them. Given the obvious need for "robust and effective case management" which might sometimes positively require a costs warning, there must be a wide margin of appreciation (a substantial area of discretionary judgment) open to the tribunal as to when and in what terms the warning should be given. It seems to me that only if it is perfectly plain to the reviewing court …that the tribunal has overstepped to bounds of propriety will an appeal on this basis succeed."

41. This and other similar cases were helpfully reviewed in a decision of the EAT, also relied upon by Mrs Drysdale. In Adese v Coral Racing Limited [2005] UK EAT 0760, the claimant appealed on the basis that he had been treated unfairly by an employment tribunal by reason of an unjust costs warning; this placed such pressure upon him that he felt obliged to abandon his claim for unfair dismissal. Part of the claimant's argument in that case was that his legal representative was so obviously incompetent that the employment tribunal should have treated the claimant as effectively a litigant in person. It was submitted that in those circumstances the costs warning rendered the whole decision of the tribunal defective, requiring a rehearing.
42. The EAT first considered dicta of the Court of Appeal in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531. In that case Lord Justice Peter Gibson said:

"…I would strongly encourage industrial tribunals to be as helpful as possible to litigants in formulating and presenting their cases. It is always good practice for industrial tribunals to clarify with the applicant (particularly if appearing in person or without representation) the precise matters raised in the IT1 which are to be pursued and to seek confirmation that any others so raised are no longer pursued. It must be for the judgment of the particular industrial tribunal in the particular circumstances of the case before it whether of its own motion it should investigate any pleaded complaint which it is for the litigant to prove but which he is not setting out to prove…..The EAT had done precisely what …should not be done, namely to erect what is a matter for the judgment of the industrial tribunal into a duty leading to a conclusion that an error of law has been committed when that duty has not been complied with. There was no such duty and accordingly there was no error of law."

43. In the same case Sir Christopher Slade said:

"I too would strongly encourage industrial tribunals to be as helpful as possible to litigants in formulating and presenting their cases, particularly if appearing in person. There must, however, be a limit to the indulgence which even litigants in person can reasonably expect. The desirability in principle of giving such assistance must always be balanced against the need to avoid injustice or hardship to the other party on the particular facts of each case. This in my judgment is a very good reason for holding that the manner and extent of such assistance should generally be treated as a matter for the judgment of the tribunal and not as subject to rigid rules of law."

44. The EAT then referred to the case of Gee (above) and stated its conclusions:

"It is clear from the passages we have cited from Mensah that an employment tribunal may give some assistance to unrepresented parties and, perhaps to a lesser extent to parties who are represented. However it must always be remembered that the employment tribunal is impartial and must not be seen or perceived to be giving assistance to one side rather than the other. We are concerned as to how an employment tribunal can on the one hand be impartial and fair to both parties and at the same time effectively make a case for one of the parties, especially one who is represented…..

Ako [Ako v Rothchild Assets Management [2002] IRLR 348] in our opinion is not authority for the proposition that an employment tribunal is bound to investigate fully with the claimant in person his reasons for seeking to withdraw a claim. The fact that consent of the employment tribunal is required for a compromise or withdrawal^[2] of the claim does not require detailed examination of the merits of the compromise or anything more than the employment tribunal did in the present case in satisfying itself that the claimant had agreed to withdraw the claim voluntarily rather than because he felt he was compelled to do so. We do not see that it would have been appropriate for the employment tribunal….to question the claimant separately and in our opinion such a course would be highly undesirable unless there was some very good reason to suppose, for example, there was a conflict between the claimant and his representative. The employment tribunal was bound to accept what it had been told by a legal representative in the claimant's presence."

45. Mrs Drysdale submitted, in the light of the principles set out in these authorities, that given the heated manner in which she made the withdrawal of the Appellant's claim the ET should have been alerted to the fact that the withdrawal was not voluntary. All that would have been required was for them to have sought clarification as to his intention to abandon the claim. This would not have amounted to an impermissible stepping into the arena or the raising of a new point on the part of the ET.
46. For the Respondent, Mr Burns pointed out that under the 2004 Regulations (and also under the current rules) the withdrawal of a claim at an oral hearing before the ET is a unilateral act by a claimant, and does not require the consent of the ET or anyone else. He submitted that by its very nature the withdrawal of a claim does not take long. In this case it occurred after the Appellant had been cross-examined and after Mrs Drysdale had requested, and had been granted, a break. This, he suggests, could be an explanation for the stage at which the withdrawal was made: it could be surmised that the Appellant might have used that opportunity to discuss withdrawal of the claim with his wife. However, Mr Burns's main submission was that it is not appropriate to speculate about the reason for the action taken by Mrs Drysdale, and it would have been wholly wrong for the ET itself to call a halt and inquire about it.
47. In Mr Burns' submission the circumstances, including the Appellant's body language, his conduct and his comments on leaving the courtroom some five minutes or so after the withdrawal had occurred, confirmed that he was in agreement with his wife's decision. During the five minutes in which they remained in the courtroom there was no suggestion by either the Appellant or his wife that they wished to change their minds. Neither of them requested a further break or an adjournment to reconsider the matter. It was clear, he submitted, that Mrs Drysdale had actual, and not just ostensible, authority to act as she did, and that the withdrawal of the claim was voluntary.
48. In these circumstances, Mr Burns submitted, it was entirely appropriate and just that the Appellant should not be allowed to go back on that decision, which would require the Respondent to incur further irrecoverable expense in addition to the approximately £33,000 irrecoverable costs already incurred in defending what was clearly a hopeless claim.

Discussion

49. From the authorities to which Mrs Drysdale referred (see above) I derive the following general principles:

(1) It is a long-established and obviously desirable practice of courts generally, and employment tribunals in particular, that they will provide such assistance to litigants as may be appropriate in the formulation and presentation of their case.

(2) What level of assistance or intervention is "appropriate" depends upon the circumstances of each particular case.

(3) Such circumstances are too numerous to list exhaustively, but are likely to include: whether the litigant is representing himself or is represented; if represented, whether the representative is legally qualified or not; and in any case, the apparent level of competence and understanding of the litigant and/or his representative.

(4) The appropriate level of assistance or intervention is constrained by the overriding requirement that the tribunal must at all time be, and be seen to be, impartial as between the parties, and that injustice to either side must be avoided.

(5) The determination of the appropriate level of assistance or intervention is properly a matter for the judgment of the tribunal hearing the case, and the creation of rigid obligations or rules of law in this regard is to be avoided, as much will depend on the tribunal's assessment and "feel" for what is fair in all the circumstances of the specific case.

(6) There is, therefore, a wide margin of appreciation available to a tribunal in assessing such matters, and an appeal court will not normally interfere with the tribunal's exercise of its judgment in the absence of an act or omission on the part of the tribunal which no reasonable tribunal, properly directing itself on the basis of the overriding objective, would have done/omitted to do, and which amounts to unfair treatment of a litigant.

50. The question in this appeal is whether the conduct of the ET following Mrs Drysdale's statement that she wished to withdraw the Appellant's claim, amounted to an error of approach of the kind identified above requiring this court to intervene, by reason of the ET's failure to take adequate steps to ensure that the Appellant had taken a properly considered decision. Or, reformulating that question slightly: whether, once Mrs Drysdale had indicated an intention to withdraw the claim, there were steps which, having regard to the overriding objective and the principles discussed above, and given that neither husband nor wife was legally trained, the ET ought to have taken, but did not take? Encompassed within this issue are a number of separate questions.
51. We first need to consider whether, as the Appellant submits, in the light particularly of his and Mrs Drysdale's lack of legal training and court room experience, the ET ought to have realised that the decision to withdraw the claim was taken in the heat of the moment, was the result of a combination of Mrs Drysdale's frustration, anger, tiredness and underlying diabetes, and was therefore not properly considered by her or the Appellant, and not voluntary.
52. In my view the evidence of what occurred at the hearing in the ET does not justify such a conclusion. There is no evidence of anything that should have alerted the ET to the possibility that Mrs Drysdale was or might be indisposed so that her judgment was or could be affected. It is clear in the light of the available material that she was disappointed and angry about the way the hearing had developed, and in particular that the case would not continue on the following day and would resume and be completed only towards the end of February 2012. Such a reaction to a lengthy adjournment of the hearing is entirely understandable, and not in itself indicative of indisposition. The members of the ET described Mrs Drysdale's demeanour at this time as "perfectly composed", "in control" and "articulate". Although the ET was aware of her underlying medical condition, no-one has suggested that she or the Appellant indicated at any stage during the hearing that she was feeling unwell.
53. This being the case, it cannot properly be said that the ET should have been prompted by this factor to treat Mrs Drysdale's decision to withdraw the claim with greater caution than would otherwise be the case.
54. What of the fact that neither the Appellant nor his wife was legally qualified? It is clear that the ET was well-aware of this and acted accordingly during the two day hearing. For example, the ET allowed additional breaks on both days at Mrs Drysdale's request, and provided fuller explanations of procedural matters which arose, including why and for how long the case would need to be re-listed to enable it to be completed. However, in view of her lack of legal training can criticism properly be levelled at the ET for the manner in which they reacted to Mrs Drysdale's decision to withdraw the claim? Should the ET have addressed the Appellant directly, and sought his express consent? Did the ET act too quickly? Should they have allowed a cooling off period or even an adjournment so that the Appellant and his wife could re-consider her decision?
55. In answering these questions it is important to bear in mind the principles to which I have referred at paragraph 49 above, and in particular that given the almost infinite range of different factual situations that may arise in the course of a hearing, the appropriate way for a tribunal to address a particular case will depend on the circumstances, and the tribunal must be allowed a wide margin of appreciation.
56. It will be recalled that after Mrs Drysdale had stated that she did not want the hearing to be re-listed, she declined the ET's invitation to continue her re-examination and stated that she wished to withdraw the claim. Then, in the words of Employment Judge Cowling:

"I asked her whether or not it was her application for the claim to be withdrawn and she said yes. I looked at the Appellant and he did not demur. Mr Burns made application for the claim to be dismissed on withdrawal. The Tribunal did not retire but we discussed what had occurred. We unanimously concluded that the application to withdraw should be granted and I dismissed the claim.

57. It appears that the Appellant and Mrs Drysdale remained in the court room for about a further five minutes after this. At no point in this period did either of them give the slightest hint that they disagreed with, or wished to resile from, the decision to withdraw the claim. On two occasions in the course of Mr Burns's application for costs Mrs Drysdale told the ET that they were not prepared to pay any costs to the Respondent, and she made other observations to the ET. As he left the room the Appellant addressed the ET:

"Thank you gentlemen for your time, thank you for your efforts; I'm sorry that we haven't come to a good resolution in this matter. Thank you!"

58. In the light of this it was clearly within the ET's margin of appreciation to decide not to address any question to the Appellant directly. It is clear that the ET was satisfied, and on reasonable grounds, that the Appellant understood and assented to what his chosen representative had done. On the evidence it is not realistic to suggest that the decision to withdraw was or might have been involuntary or that the Appellant was or might have been unaware of the implications of it. Mrs Drysdale's observations about the payment of costs, as well as the Appellant's valedictory remarks, indicate that they were both conscious of the effect of, and intended, the withdrawal of the claim. Only where there is some clear indication of a dispute or failure of communication between a party and his or her chosen representative, or, perhaps, in the event a manifestly inexplicable and irrational decision by a representative, should a tribunal feel obliged to seek confirmation directly from a litigant. There was nothing of the kind here.
59. Nor in my view is it realistic to suggest that if either of them had had second thoughts or had needed time to consider or reconsider, they would not have requested it at the time. The Appellant and Mrs Drysdale's obvious intelligence, and their conduct throughout the hearing, would have reassured the ET as to that.
60. Should the ET nevertheless have queried the decision to withdraw, and/or provided the Appellant with a cooling off period or adjournment even though it was not sought?
61. First, it is clear that the ET was under no obligation to enquire into the reasons for the decision to withdraw the claim, with either the Appellant or his representative. Other than in exceptional cases (which I do not attempt to define, as on any view this is not one of them) such an enquiry would not only be unnecessary but also inappropriate: it could be construed as an invitation to disclose privileged material relating to the claimant's view (or advice received) as to the merits of the claim and/or as an intervention which might well prejudice the interests of the other side. In many cases it could also prejudice the interests of the claimant himself, who might be persuaded by the court's intervention to pursue an unmeritorious case he was otherwise minded to abandon.
62. Although intervention of this kind by a court was discussed in the course of the argument before us, as far as I am aware it has not been part of the Appellant's case that the ET should have entered into such as enquiry.
63. That leaves the question whether notwithstanding Mrs Drysdale's confirmation that she wished to withdraw the claim and the Appellant's apparent assent to that decision, it was incumbent upon the ET to adjourn the proceedings on that afternoon, either for a few minutes or for a longer period, to enable the Appellant and Mrs Drysdale to reflect further on the decision to withdraw.
64. In my view, notwithstanding the absence of a legal representation, neither the overriding objective nor any other principle of law required the ET to take such a step. Whether to do so or not was a question of judgment falling squarely within the margin of discretion of the ET. The ET had no reason to suspect that the decision to withdraw the claim was ill-considered or irrational. Further, even if the ET had identified a risk that the decision was impulsive, that risk would have been removed by the conduct of the parties in the immediate aftermath of Mrs Drysdale's announcement. Also, the fact that Mrs Drysdale was not legally qualified would have been lower down the scale of significance in this case than in many others where there is no professional representation, given Mrs Drysdale's evident intelligence, clarity of thought and speech, and strength of purpose – qualities we have been able to observe ourselves in the course of this appeal.
65. I consider that the ET cannot justly be criticised for the approach they took. There is no reason for holding that they acted other than with scrupulous fairness and propriety.

Conclusion

66. For these reasons, there are in my view no grounds for holding that the ET failed to take adequate steps to ensure that the Appellant had taken a properly considered decision to withdraw his claim, and had thereby erred in law or acted unfairly or in breach of the overriding objective. I would therefore dismiss this appeal.

Lord Justice Christopher Clarke

67. I agree

Lady Justice Arden

68. I also agree.

Note 1   The rule currently in force corresponding to Rule 25(4) is contained in paragraph 52 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013/1237, which replaced the 2004 Regulations. Paragraph 52 provides that where a claim is withdrawn the employment tribunal “shall issue a judgment dismissing it” except in certain limited circumstances.    [Back]

Note 2   Mr Burns submitted that the reference to “withdrawal” by the EAT must have been a mistake, as the consent of the employment tribunal was, and is, not required to withdraw a claim.    [Back]