Claimant v Next Retail Limited T/A Next Online — 2023

At a closed telephone case management discussion on 23 November 2022, the claimant said he was considering a personal injury claim and accepted that the matter he was closest to describing was constructive dismissal, although he had not yet resigned. He then withdrew the claim, and a dismissal-upon-withdrawal judgment was issued the same day. The reconsideration judgment concerns the claimant's later application to have that dismissal judgment varied or revoked.

The claimant's application of 13 January 2023 said he had been advised that he could not bring a personal injury claim because the earlier claim had been dismissed, and he argued that the claim should have been withdrawn rather than dismissed. The judge considered the overriding objective, Rules 70, 71 and 72 of the Employment Tribunals Rules of Procedure 2013, Rule 51 and Rule 52 on withdrawal and dismissal, and the balance of interests of justice, including the approach in Outasight VB Limited v Brown.

The judge refused reconsideration. He found that the original claim did not advance a coherent legal case and was instead a narrative of events or grievance, and that the claimant had identified constructive dismissal as the closest description even though such a claim could not be brought before resignation, citing Capek v Lincolnshire County Council. The judge held that dismissal upon withdrawal was in the interests of justice because the respondent had not been able to engage meaningfully with an unclear claim, and he saw no legitimate reason to reserve a further claim under the same case number.

The judgment also records that the claimant would not be prevented from bringing a different claim later if he resigned, and that such a claim would be for him to decide and would be contested. The application was refused because the judge could not discern any reasonable prospect of the original decision being varied or revoked, and he considered it would not be fair to prejudice the respondent by reconsideration after the claimant had later obtained legal advice.