Mr C Smith v Secretary of State for Education — 2021

Mr Smith brought complaints of direct race and age discrimination after applying on 24 February 2020 for an Assistant Investment Manager role, being shortlisted and interviewed on 1 April 2020, and then being notified that he was unsuccessful. He presented his ET1 on 11 August 2020. The claim was listed for a full merits hearing in January 2022, but on 26 February 2021 he wrote to the tribunal withdrawing the claim, referring to deteriorating ill health, the pandemic, difficulty finding suitable employment, and his wish to prioritise his health.

A judgment dismissing the claim on withdrawal was signed on 4 March 2021 and sent to the parties on 6 March 2021. Mr Smith applied on 20 May 2021 to reinstate the claim, relying on improved health, resources to appoint legal advisers, new employment, and information about the successful candidates obtained through disclosure. The tribunal applied Rules 51 and 52 of the Employment Tribunal Rules and Khan v Heywood & Middleton Primary Care Trust. It found no material difference between the 2004 Rules considered in Khan and the 2013 Rules, and held that Khan remained good authority.

Employment Judge Ahmed found that there was no duress or improper pressure on Mr Smith to withdraw, and that the withdrawal was unconditional and voluntary. Because the claim had not only been withdrawn but had also been dismissed on withdrawal, the tribunal refused the reconsideration application and confirmed the original decision. The race and age discrimination claims therefore remained dismissed on withdrawal and were not determined at a final merits hearing.

The respondent applied for costs after the reconsideration decision. The tribunal considered Rule 76 and the respondent's arguments that Mr Smith had acted unreasonably and that the claim or application had no reasonable prospects of success. It refused the costs application, taking account of Mr Smith's status as a litigant in person, finding that it was not unreasonable for him to seek an oral hearing, and noting that his reconsideration application had passed the preliminary consideration stage. The tribunal also stated that it could not be said that the underlying claim had no reasonable prospects of success.