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Withdrawal and Dismissal
Rad Kohanzad represented Ms Dalvinder Kaur in an appeal concerning the dismissal of an Employment Tribunal claim following withdrawal. Ms Kaur had withdrawn her disability and sex discrimination claims, but later sought to challenge the dismissal after learning that it might affect a separate personal injury claim. The appeal examined whether the Employment Judge had properly considered her ignorance of the legal consequences when deciding whether dismissal was contrary to the interests of justice. The EAT dismissed the appeal, finding that the Judge had addressed the issue in her reconsideration decision.
Background: withdrawing an Employment Tribunal claim
Ms Kaur had worked for Birmingham City Council since 2004. In March 2022, acting without legal representation, she brought Employment Tribunal claims including disability and sex discrimination. The Council argued, among other things, that the claims were out of time.
In June 2022, Ms Kaur withdrew her claim, explaining that her mental health made it difficult to continue without representation. She did not say at the time that she wished to reserve the right to bring further proceedings.
Under Rule 52 of the Employment Tribunals Rules of Procedure 2013, a Tribunal was required to issue a judgment dismissing a withdrawn claim unless one of two exceptions applied. One exception concerned a claimant who had expressly reserved the right to bring a further claim at the time of withdrawal. The other applied where dismissal would not be in the interests of justice.
A legal officer subsequently issued a dismissal judgment. Several months later, Ms Kaur learned that the dismissal might affect a separate civil personal injury claim arising from the same general background. She applied for the decision to be reconsidered, explaining that she had not understood the potential consequences of dismissal when she withdrew the Tribunal claim.
An Employment Judge considered the matter afresh and upheld the dismissal. The Judge also refused a subsequent reconsideration application. Ms Kaur appealed both decisions. At an earlier EAT hearing, one amended ground of appeal, drafted by Rad, was permitted to proceed to a full hearing.
The legal issue: Rule 52 and the interests of justice
The appeal focused on Rule 52(b) of the 2013 Rules. The question was whether the Employment Judge had failed to address whether Ms Kaur’s ignorance of the consequences of withdrawal and dismissal was reasonable.
Rad’s argument was that the fact Ms Kaur could have told her personal injury solicitors about the earlier Employment Tribunal proceedings did not answer the central question. If she did not understand the legal significance of the withdrawal, she might not have appreciated why that information mattered. In the appeal ground, this was characterised as an “unknown unknown”.
The issue was not whether the Tribunal had to investigate every claimant’s understanding of the rules before dismissing a withdrawn claim. Rather, it was whether the Judge had properly considered the explanation and evidence Ms Kaur had actually put before the Tribunal.
The EAT’s decision and reasoning
His Honour Judge Auerbach dismissed the appeal.
The EAT confirmed the importance of the distinction between the two exceptions in Rule 52. Under Rule 52(a), a claimant needed to express a wish to reserve the right to bring a further claim at the time of withdrawal. Ms Kaur had not done so, and it was not disputed that this exception did not apply.
Rule 52(b), however, required consideration of whether dismissal would be contrary to the interests of justice. That assessment depended on the circumstances of the case and the overriding objective. The Tribunal was not required to make enquiries in every case about a claimant’s understanding of the consequences of withdrawal. But where a claimant had raised the issue and explained their ignorance of the legal implications, the Tribunal could not simply disregard that explanation.
The EAT considered the two decisions separately. In the original dismissal decision, the Judge had accepted that Ms Kaur did not appreciate the implications until January 2023. The wording of that decision did not clearly establish that the Judge had considered whether her continuing ignorance was reasonable.
The reconsideration decision was different. The Judge had expressly considered Ms Kaur’s explanation that she had not told her personal injury solicitors about the earlier Employment Tribunal proceedings because she did not realise that information was relevant. The Judge concluded that the fact she had previously brought and withdrawn formal proceedings about the same general matters was information that ought to have been provided to her solicitors, even if she did not appreciate its legal significance.
The EAT held that this reasoning showed the Judge had considered whether Ms Kaur ought reasonably to have raised the matter sooner. The Judge was entitled to conclude that she should have done so, particularly given the time that had passed and the opportunity to inform her solicitors.
Rad also argued that the word “could” in the original decision did not necessarily mean “should”. The EAT recognised that distinction but concluded that the later reconsideration decision made the Judge’s reasoning sufficiently clear. The appeal therefore failed.
The EAT did not decide whether the dismissal of Ms Kaur’s Employment Tribunal claim actually prevented her from pursuing a civil personal injury claim. That question remained unresolved and was outside the issue the EAT needed to determine.
What this case means for claimants
Withdrawal and dismissal have different consequences. Under the applicable rules, withdrawing a claim did not necessarily end the matter in the same way as a dismissal judgment. Claimants considering withdrawal should understand the possible effect on future proceedings.
The interests-of-justice exception is fact-sensitive. A claimant’s lack of understanding may be relevant, but it does not automatically prevent dismissal. The Tribunal will assess the explanation and the surrounding circumstances.
The Tribunal must address material explanations put before it. Although there is no general duty to investigate every claimant’s understanding, a decision may be vulnerable to appeal if the Tribunal fails to consider a relevant explanation that has been raised.
For someone considering an appeal, the distinction is between showing that an important issue was not properly addressed and simply disagreeing with the Judge’s assessment. In Kaur, the EAT found that the reconsideration decision had addressed the relevant issue and that the conclusion was one the Judge was entitled to reach.
Advice on appealing an Employment Tribunal decision
If you have received an unfavourable Employment Tribunal decision, I can review the written reasons and advise on whether there may be arguable grounds for an appeal before you decide whether to incur the further costs of pursuing it. If you decide to proceed, I can also advise on and represent you in the EAT.
Read about my Employment Tribunal appeal review and advice service
Case details
Case: Ms D Kaur v Birmingham City Council
Neutral citation: [2025] EAT 190
Judgment date: 18 December 2025
Judge: His Honour Judge Auerbach
Case numbers: EA-2023-000835-BA and EA-2023-000836-BA
Outcome: Appeal dismissed.
Counsel for the Appellant: Rad Kohanzad, instructed by Atkinson Rose.
Counsel for the Respondent: Felix Levay, instructed by Birmingham City Council’s Legal and Governance Department.
Official judgment: Read the full EAT judgment (PDF)
