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14/02/2014

Denteh & Others v. South London & Maudsley NHS Foundation Trust

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Employment Appeal Tribunal

An employment tribunal had correctly concluded that it did not have jurisdiction to hear race discrimination claims which had previously been dismissed on the respondent's oral application following the claimants' withdrawal of the claims. The tribunal dismissing the claims had been entitled to exercise its discretion to waive the requirement under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.25 for a written application to be made.

The appellant mental health nurses (D) appealed against an employment tribunal's decision to strike out their race discrimination claims against the respondent NHS trust on grounds of jurisdiction.

D had been dismissed for gross misconduct in relation to the neglect and abuse of a patient. They brought unfair dismissal and race discrimination claims. They withdrew their race discrimination claims at a case management hearing and the claims were dismissed. They lodged a second race discrimination claim. At a pre-hearing review, the tribunal held that it did not have jurisdiction to consider their claims following the dismissal of their earlier claims. The issue was whether the trust's application for dismissal, made following D's withdrawal of their race discrimination claims, had to be in writing for the purpose of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.25.

D submitted that it was a mandatory requirement of para.25(4) and para.11 that the application for dismissal was to be made in writing. The trust argued that para.11 also gave the tribunal discretion to waive the requirement.

HELD: D had been represented by solicitors or employment consultants. The employment judge who dismissed the claims had reviewed her decision and stated that she had asked D's representatives whether they had any objection to the trust's oral application to dismiss, and that no objection had been raised save for an indication that withdrawal was not based on the merits of the claims. There had been no indication by D, either at the pre-trial hearing or within the period relevant to review or appeal, that withdrawal was for a reason which required the cause of action to be kept alive and that the claims should not therefore be dismissed. That being so, there had been nothing to be gained by, for example, adjourning the hearing to allow for a written application to dismiss. To require a written application in such circumstances would be inimical to the overriding objective, which included dealing with cases expeditiously and saving expense. The tribunal had been entitled to exercise its discretion to waive the requirement that the application had to be in writing, Drysdale v Department of Transport (Maritime and Coastguard Agency) applied. It followed that the second tribunal had correctly concluded that it did not have jurisdiction to hear D's race discrimination claims (see paras 19-25 of judgment).

Appeals dismissed

Counsel for the respondent: Toby Kempster

LTL 28/4/2014
Denteh.pdf

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