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What about cases that are withdrawn or settled before they reach a hearing?

Employment Matters e-update – May 2022

Overview

In many cases, employers will consider settling a claim in order to avoid the matter proceeding to the ET, even where there are good prospects of successfully defending the claim. High upon the list of reasons is that it is commercially more sensible to do so (i.e. that defending the claim will cost more in terms of legal fees and lost management time than settling will). However, where a claim is settled, that may also reduce the amount of information that will become publically available.

In cases where a claim is withdrawn by a claimant with no settlement having been agreed (usually due to a realisation that the claim was misconceived or in response to a costs of expenses warning having been received), a judgment formally dismissing the claim is issued by the ET. This judgment will normally be referred to in the online database in the same way as for a judgment following a full merits hearing. The judgment will normally be in the following innocuous terms “The claim, having been withdrawn by the clamant, is dismissed under Rule 52 of the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.”

In a case where a settlement is agreed between the parties, the terms of any settlement agreement normally oblige the claimant to write to the ET formally withdrawing their claim. A formal judgment is then issued and this is normally in exactly the same terms as a case where the claim is withdrawn without terms of settlement having been agreed (see above).

It is accordingly not normally possible to ascertain from the terms of a dismissal judgment following withdrawal of a claim, whether or not the case has been settled. This is positive for cases where settlement has been reached but less so in a case where an employer is likely to want it to be made clear that no such settlement was agreed.

Whilst it is not possible for the parties to control what information is included in the judgment, many employers wish to avoid it becoming known that the claim has settled. There are steps that employers can take in order to minimise the risk that any judgment discloses this fact (specifying the form of withdrawal in the settlement agreement).

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