Labour & European Law Review Weekly Issue 387 17 September 2014
Although it is “desirable” for tribunals to help litigants who are representing themselves or whose representatives are not legally trained in presenting their cases, the Court of Appeal said in Drysdale v The Department of Transport (The Maritime and Coastguard Agency) that they had a wide margin of appreciation in assessing what was appropriate.
Mr Drsydale, who worked for the Department of Transport as a marine surveyor for over ten years, brought a claim of unfair dismissal against his former employer. His wife, who was not legally qualified, took on the role of lay representative.
Towards the end of the second day of the substantive hearing against his claim, she became upset when the judge indicated that there would not be enough time that day to complete matters. When she realised that the hearing could not be rescheduled for months, she said she wanted to withdraw the application. As soon as she confirmed this to the judge, the barrister acting for the department asked for the claim to be dismissed. The tribunal granted the application to withdraw and the judge dismissed the claim. He also agreed to an order for costs against Mr Drysdale.
Mr Drysdale then appealed against the decision, arguing that the tribunal had accepted the withdrawal of the claim too quickly, particularly given that his wife was not legally qualified. He said the judge should have realised that it was an “action taken in the heat of the moment”, exacerbated by his wife’s medical condition (type 1 diabetes) which the tribunal knew about.
The EAT, however, disagreed. It held that although tribunals have to consent to the withdrawal of a claim, this did not mean they have to examine the merits of the decision in great detail. In this case, the tribunal did everything it was required to do by making sure that the claimant had agreed to withdraw the claim voluntarily rather than because he felt compelled to do so.
It concluded that the tribunal did not have to ask Mr Drysdale separately about the decision to withdraw, unless there was a very good reason to suppose, for example, there was a conflict between him and his wife. Otherwise, “the employment tribunal was bound to accept what it had been told by a legal representative in the claimant's presence."
Court of Appeal decision
The Court of Appeal dismissed Mr Drysdale’s appeal. Although it accepted that it was “obviously desirable” for courts and tribunals to help litigants in formulating and presenting their cases, they had a wide margin of appreciation in assessing what was appropriate.
In this case, it was not obvious to the tribunal that Mrs Drysdale was unwell to the point that her judgment was or could be affected. It was clear that she was disappointed that the case would not be completed for another few months, but this was perfectly understandable in the circumstances.
And although she was not legally qualified, she was given the opportunity by the tribunal to confirm whether she really meant to withdraw the claim or not. Both she and her husband remained in the room for a further five minutes after the claim was dismissed. Both of them understood the implications of withdrawing, but neither of them indicated that they disagreed with or wanted to change the decision once it had been made.
The tribunal was not under any obligation to ask why the decision to withdraw had been made with either Mr Drysdale or his wife. Nor was it incumbent on the tribunal to adjourn the proceedings either for a few minutes or a longer period to allow them to reflect further on the decision to withdraw. It was only in “exceptional circumstances” that tribunals should intervene and this was not one of them.