Mr A v Persimmon Group plc — 2020

The claimant, a bricklayer, had an accident at the respondent’s construction site in August 2019. He later contacted Irwin Mitchell on 23 September 2019 about what was discussed as a possible personal injury claim and a possible employment matter. In December 2019 he brought tribunal claims against Persimmon, pleaded as unfair dismissal and dismissal for raising health and safety concerns, and the tribunal later joined the Persimmon claims together for case management.

On 14 February 2020 the claimant withdrew the claims, saying he wished to reserve his position pending the SRA conflict issue. The tribunal refused the respondent’s renewed application for a dismissal judgment. It held that the pleaded status case was not one with no reasonable prospect of success, because employee or worker status was a preliminary issue that would need evidence, and it accepted that the claimant’s withdrawal with reservation was not vexatious or abusive in the circumstances. The tribunal also said that while any fresh Employment Tribunal claim would face serious limitation problems and would likely be doomed to fail, the reservation could validly preserve any related county court personal injury claim where overlapping issues might arise.

The respondent’s costs application against the claimant was dismissed, as was the claimant’s application for a preparation time order. On the conflict issue, the tribunal held that Irwin Mitchell acted unreasonably in acting for Persimmon after the September 2019 call with the claimant. It found that the claimant was a prospective client for the purposes of the SRA Code, that the call covered both employment and personal injury issues, and that the firm’s investigation had not properly taken account of the extent of the advice and information given. The tribunal nevertheless made no wasted costs order, because Persimmon did not seek disallowance of its solicitor-client costs and no causal wasted costs in defending the tribunal claim were shown.