There are certain general principles governing the ways in which tribunals can assist someone without legal representation (known as a litigant in person). In Paul v Virgin Care Ltd, the Employment Appeal Tribunal (EAT) confirmed that where a litigant in person withdraws a claim, tribunals must be satisfied that their decision to do so is clear, unambiguous, and unequivocal.
Ms Paul worked for Devon County Council in the Family Support Services Department until 2013 when her employment transferred to Virgin Care under the 2006 Transfer of Undertakings (Protection of Employment) Regulations (TUPE).
In 2015, she received a final written warning related to an incident concerning a boy in her care. A further dispute then arose over her mileage claims which led to her dismissal on grounds of misconduct in 2016.
She brought a number of claims including “automatically” unfair dismissal, relying on regulation 7(1)(b) of TUPE alleging the principal reason for her dismissal was “a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce.”
During a preliminary hearing to consider whether Ms Paul’s claims should be struck out or a deposit ordered for them to continue, Ms Paul (who was unrepresented) indicated she was withdrawing her complaint of automatically unfair dismissal under regulation 7(1)(b). Having established that this was what she wanted to do, the tribunal dismissed this particular aspect of her claim.
Ms Paul then appealed arguing that the judge had been wrong in law to dismiss the claim on the basis that he had failed to ensure that she had made an informed choice when she withdrew it and/or had exerted unfair pressure on her to withdraw.
The EAT first noted the principles set out in Drysdale v The Department of Transport (The Maritime and Coastguard Agency) which emphasise that the level of assistance that it is appropriate for tribunals to provide to a litigant in person will vary depending on the circumstances of the case. As such, the EAT would not normally interfere with the way it had been provided unless the tribunal had exercised its judgment in a way that no reasonable tribunal would do. Where a claim had been withdrawn, however, tribunals must be satisfied that the decision had been clear, unambiguous, and unequivocal.
In this case, the EAT stated that once Ms Paul had accepted that she could not link her dismissal to the transfer, it was not surprising that the judge asked her whether she still intended to proceed with the automatically unfair dismissal allegation. Indeed, he made it clear that the decision was entirely a matter for her. Given that context, the EAT rejected Ms Paul’s contention that she had had no choice over whether to withdraw her claim.
Although the judge did not explicitly tell her that if she withdrew, she would not then be able to pursue the claim at a later stage, the EAT was satisfied that this consequence was clear from the context and there was nothing to suggest to the judge that she had not understood this. Indeed, when asked by the EAT whether she understood at the time that withdrawal meant she could not pursue that allegation as part of her claim, she replied that “It was kind of obvious.”
The EAT therefore dismissed the appeal on the basis that the questions she had been asked by the judge were fair and clear; she had been given an appropriate opportunity to consider whether or not to withdraw this part of her claim, in circumstances where it was clear what the implications of that were for the future pursuit of the claim, and there had been no unfair pressure put on her to do so.