Mr Bryan Southward v Colas Rail Limited — 2020

Mr Southward presented Claim 1 on 2 November 2020 and ticked unfair dismissal and disability discrimination, but he said he submitted the form in error before completing it. He emailed the tribunal on 3 November 2020 asking for the claim to be cancelled, and emailed again on 17 November 2020 asking for it to be withdrawn. Claim 1 was later dismissed following withdrawal by a judgment signed on 10 December 2020 and sent to the parties on 16 December 2020.

Claim 2 was presented on 17 December 2020 and was agreed to raise the same or substantially the same complaints as Claim 1. The respondent applied for rejection or strike out on the basis of cause of action estoppel, relying on the dismissal of Claim 1. The claimant argued that he had not intended to abandon the claim and relied on authorities including Ako and Srivatsa, but the judge held that the earlier judgment triggered an absolute bar.

Employment Judge Connolly relied on Barber, Rule 52 of the Employment Tribunal Rules of Procedure 2013, and the analysis in Virgin Atlantic Airways Ltd v Zodiac Seats Limited to conclude that the circumstances of the withdrawal could not be reopened in this hearing. The judge accepted that the claimant had tried to reserve the right to bring the claim again and noted that he was not represented by a qualified lawyer, but held that the proper route was reconsideration or appeal of the earlier dismissal. Claim 2 was therefore rejected under Rule 12(1)(b) as an abuse of process; alternatively, it would have been struck out under Rule 37(1)(a) as having no reasonable prospect of success. No remedy was awarded because the merits were not reached.