In a recent unfair dismissal case, B v T, an interesting (but far from uncommon) legal situation arose regarding when an admission should be binding upon a party in employment litigation.
Facts
In July 2018, a Preliminary Hearing was held at which the Claimant was unrepresented, and the Respondent was legally represented. The order arising was recorded as follows:
- “The Claimant has permission to plead a case of unfair dismissal” (The Claimant having previously pleaded her case erroneously as redundancy. The Respondent therefore had permission to alter its Grounds of Resistance accordingly.)
- “The Respondent admits that it could not show a potentially fair reason for dismissal such that, if the Claimant was dismissed by them, which they deny, the dismissal will be unfair.”
Six days prior to the hearing, the Claimant instructed legal representation and it was noted that, despite the foregoing admission, the Respondent had pleaded in its Amended Grounds of Resistance that “in the event that the Claimant is found to be dismissed, the Respondent had some other substantial reason for so doing”.
At trial in February 2019, The Claimant’s representative raised the matter as a preliminary issue and requested that the relevant paragraph be struck out for non-compliance with an order of the Tribunal under Rule 37 of the Employment Tribunals Rules of Procedure 2013. The Respondent’s Representative (who had been present at the PH) stated that the order did not faithfully record what they had in fact said to the Employment Judge at the PH, and that they had not made such an admission.
The Employment Judge put the issue off to closing submissions. The case settled that day.
Whether the admission was or was not made was an issue of fact, which the Tribunal never got to decide. However, had that decision gone against the Respondent, two further questions arise:
- Should an admission made during the course of a Preliminary Hearing be binding upon a party in Employment Tribunal litigation?
- If it should, what steps could / should the Respondent have taken in this case to resile from that admission?
Law
There is no provision in the Employment Tribunals Rules of Procedure 2013 that grapples with the issue of admissions. When the Employment Procedure Rules are silent on a point, one generally looks first towards the CPR.
Civil Procedure Rules
Under CPR r. 14.1, written admissions are binding and permission of the Court is required to resile from an admission.
However, it is noted in the WB Commentary CPR r. 14.1.2 “If it is not in writing it may still be admissible in evidence but it is not a formal admission for the purposes of Part 14.”
However, (in the case of a written admission) in the case of Nowicka-Price v Chief Constable of Gwent Constabulary UKEAT/0268/09, 3 August 2009, (unreported) at [24-25] Judge McMullen QC held that a Tribunal should be guided be the dicta of Sumner J in the case of Braybrook v Basildon & Thurrock University NHS Trust [2004] EWHC 3436 (QB), and the factors in CPR r. 14PD7.2.
As such, a Tribunal will take into account:
(1) In exercising its discretion the court will consider all the circumstances of the case and seek to give effect to the overriding objective;
(2) Amongst the matters to be considered will be:
- (a) the reasons and justification for the application which must be made in good faith;
- (b) the balance of prejudice to the parties;
- (c) whether any party has been the author of any prejudice they may suffer;
- (d) the prospects of success of any issue arising from the withdrawal of any admission;
- (e) the public interest, in avoiding where possible satellite litigation, disproportionate use of court resources and the impact of any strategic manoeuvring;
(3) The nearer any application is to a final hearing the less chance of success it will have even if the party making the application can establish clear prejudice. This may be decisive if the application is shortly before the hearing.”
Braybrook v Basildon & Thurrock University NHS Trust
Per Sumner J at [45]
And:
“In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including—
- (a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;
- (b) the conduct of the parties, including any conduct which led the party making the admission to do so;
- (c) the prejudice that may be caused to any person if the admission is withdrawn;
- (d) the prejudice that may be caused to any person if the application is refused;
- (e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;
- (f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the admission was made; and
- (g) the interests of the administration of justice.”
CPR r. 14 PD 7.2
However, this does not address when an admission will be binding, nor an oral admission can be binding. The answer to problem is drawn from Phipson on Evidence.
Phipson on Evidence
In Chapter 4 – Admissions; Section 4 – Informal Admissions states that:
“Admissions by counsel stand upon a narrower footing, for while the attorney represents the client throughout the cause, the former represents him only upon the particular occasion for which he is briefed. Subject to this, such admissions are, in civil cases, conclusive if made for the purpose of dispensing with proof at the trial, but are otherwise merely prima facie evidence against the client.”
“… a client is not bound by an admission made by counsel in the course of interlocutory proceedings unless the circumstances are such as to give rise to an estoppel, for example if the other party had acted to his prejudice on the faith of it.”
[Emphasis Added]
Therefore, on the basis of the above, a litigant is thus protected by equity in certain situations and so the question that must be resolved by the Tribunal is what effect has the admission had on the conduct of proceedings by the other party.
Equity
In brief, this is a question of fact and degree. There is likely a distinction is drawn where:
- i) an admission is made and steps are taken to remedy it prior long before trial; and
- ii) an admission is made and no steps are taken to remedy it before trial.
In the former situation, it would be difficult for a party to assert such prejudice that the other party would be prevented from withdrawing their admission. Disclosure can be re-opened and witness statements can be updated / amended. It is likely that such prejudice would be remedied by costs.
In the latter situation, the Claimant has likely relied on that admission and thus not called evidence on sought disclosure on the particular point. In such a scenario, it is likely that a Respondent would be estopped from resiling from an admission.
Discussion
1.Should an admission be binding in the ET?
The Employment Tribunal was intended to be a more informal arena in which to bring litigation. It is likely that, in circumstances such as the above, given that the Tribunal had recorded that an admission was made, the Respondent would have likely been estopped from resiling from the admission despite the protestations of their representative. The prejudice to the Claimant would have been simple to assert and the concession was recorded in black and white.
However, it must also be correct that a party can resile for an admission incorrectly made, if an application to resile is brought promptly as is the way under the CPR.
As such, parties should be aware that admissions can (and in certain circumstances should) be binding in the Employment Tribunal and that counsel should tread very carefully before making them.
2.How will an application to resile from an admission be dealt with?
It is clear from the above analysis that, in any event, steps should be taken to set the record straight upon the filing of the amended ET3. There may well be a costs consequence of the same if it proceeds to a contested hearing. That will be a price to pay for certainty in such stark circumstances.
Any such application should be based on the judgment of Sumner J, CPR r. 14PD7.2 factors and Respondents should be alive to the question of an estoppel.
Conclusion
These are the principles that should be born in mind when making any application to resile from an admission. Parties should take care when making admissions during the course of a Preliminary Hearing and if a recorded order is not representative of what occurred, steps should be taken to remedy the situation urgently.
HENRY KING appeared for the Claimant in this matter
