Judge overturns dismissal after finding claimant’s withdrawal was a clear procedural mistake
An employment judge has sharply criticised a Cornish law firm for what he described as “unconscionable opportunism” in attempting to benefit from a procedural mistake made by a disabled receptionist during the withdrawal of her constructive dismissal claim.
The ruling was issued by Employment Judge Smail, who said he had “no hesitation” in setting aside an automatic dismissal issued after the claimant, a litigant in person, notified the tribunal that she wished to withdraw her case. According to the judge, she did so under the mistaken belief that she was accepting the firm’s proposed settlement before ACAS had formally confirmed the agreement as binding.
The tribunal heard that the claimant, Wendy Wickett, worked as a receptionist for Sproull Solicitors in Bodmin between January 2018 and May 2023. She resigned and brought claims of unfair dismissal and disability discrimination in August 2023. Sproull Solicitors accepted that Ms Wickett had a “mental health disability of anxiety and depression” for the purposes of the proceedings.
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Ahead of a five-day merits hearing, the parties entered settlement discussions through ACAS. Settlement terms including compensation of £12,000 were agreed in principle, and draft wording was sent to Ms Wickett. ACAS informed her that she should only withdraw her claim after ACAS had confirmed the agreement was legally binding.
Four days later, however, Ms Wickett emailed the tribunal to withdraw her claims. The next afternoon ACAS informed her that, following her withdrawal, there was “now no case for ACAS to settle”, and sent a similar message to the respondent firm.
When the respondent then sought to rely on the withdrawal to treat the matter as concluded, the judge said the firm’s position was untenable. He noted that Sproull had acknowledged the error but had “sought to capitalise upon this mistake”. He stated that the firm had “not recognised a mistake and honoured the settlement, they have ran with the idea that the claimant withdrew her claim so there is no claim for them to deal with”.
Judge Smail added: “In my judgment that is most unattractive, indeed unconscionable opportunism on their part. They proposed the settlement, adopting wording provided by ACAS. Plainly the claimant thought she was accepting that settlement and made the procedural error of writing to the tribunal, withdrawing her claim before ACAS had declared the settlement as binding.”
Under the Employment Rules 2024, a judge may reconsider decisions made by a legal officer, including dismissal following a withdrawal. Here, Judge Smail found that the dismissal “cannot be in the interests of justice” where it resulted from “a clear mistake by the claimant”.
Although the claim technically remained withdrawn, the decision allows Ms Wickett to bring a fresh claim on the same basis, subject to any argument on limitation. In the judge’s view, the circumstances provided a clear basis for granting any necessary equitable extension of time.
Judge Smail emphasised that reinstating the claim would not prejudice the respondent. He noted: “There is nothing stopping the respondent from simply honouring the original settlement proposed by them.”
The ruling underscores the importance of ensuring litigants in person receive clear procedural guidance and that settlement processes through ACAS are followed precisely. It also highlights the tribunal’s power to revisit dismissals where errors undermine the fairness of proceedings.
The employment tribunal’s decision allows Ms Wickett the opportunity to pursue the same remedies originally sought and prevents the respondent firm from relying on what the judge found to be a mistaken and premature withdrawal of the claim.