EAT Practice and Procedure: Review – Compromise
By the first of two appeals, the Claimant appealed against the decision of a Regional Employment Judge to reject at the preliminary consideration stage his application for a review of a decision of a different Judge to reject his claim for interim relief on the ground that he had been dismissed for making protected disclosures. Since that decision the Claimant had settled his unfair dismissal claim for a substantial sum by a COT3 form; his claim was dismissed upon withdrawal; the file had been destroyed as a result. HR subsequently discovered that documents disclosed to him prior to the settlement, which he knew had been redacted, had been redacted so as to remove passages which, on his case, revealed the true reason for the dismissal. He therefore sought to have the interim relief application reviewed on the basis of new evidence. A Regional Employment Judge decided that it was not practicable for the original Judge to deal with the application and considered it herself; she dismissed it.
Held: (1) The word ‘practicable’ in Rule 35(3) of the 2004 Rules had to be construed bearing in mind the overriding objective and was not limited to cases in which the original Judge was dead, too ill or beyond the reach of electronic or telephonic communication. The Regional Employment Judge had to consider an issue of fact and degree; her decision could not be attacked other than on perversity grounds; she had reached a permissible decision.
(2) If that was wrong, the factual existence of impracticability was not a ‘precedent fact’ which, if not present, deprived the Regional Employment Judge of jurisdiction to deal with the application and rendered her decision a nullity, with the effect that any other grounds for rejection of the application were to be discounted. The analogy with administrative law cases was not appropriate. Impracticability was one but only one of the issues which the Regional Employment Judge had to consider. Manning v British Telecommunications Ltd applied.
(3) The Regional Employment Judge was entitled to reach the decision that an extension of time to apply for review should not be granted; she had considered the issue and had resolved it against the Claimant as she was entitled to do.
(4) In any event the unfair dismissal claim had been dismissed as a result of a binding agreement between the parties, pursuant to which the Claimant agreed not to make any further appeal or application. He disclaimed any intention of seeking to have the agreement set aside; it was still binding. There was no existing claim in the course of which the review application could be made.
By the second appeal, the Claimant appealed the decision of the previous President of the Employment Tribunal rejecting his claim to a preparation time order in respect of his preparation of the case. Held that that decision by the President was a judicial decision; but the appeal must fail for the reasons set out at (4) above.
Jeffrey Burke QC HHJ
[2015] UKEAT 0252 – 13 – 0602
Bailii
England and Wales
Employment
Updated: 27 December 2021; Ref: scu.542326
