Council of The City of Newcastle Upon Tyne v Marsden (Rev 1): EAT 23 Jan 2010

Claim under Disability Discrimination Act 1995 dismissed at PHR because Claimant not available to give evidence as to long-term effect of injury – Judge willing to offer adjournment if absence of Claimant had been explained and adjournment applied for – Counsel tells Judge that he does not know reason for Claimant’s absence and fails to apply for adjournment – At subsequent review hearing Claimant proves that counsel had given him express advice that he need not attend PHR – Judge revokes dismissal of claims and orders further hearing.
Held: Although the Judge’s detailed reasoning was to some extent defective, the substantive decision was correct: although generally a review would not be permitted on the basis that evidence that should have been called first time round had not been called as a result of the error of a representative, counsel’s lack of frankness with the Tribunal, which cost the Claimant the chance of an adjournment, was an exceptional circumstance which rendered it just to revoke the strike-out – Consideration of the extent to which earlier cases such as Flint v Eastern Electricity Board and Lindsay v Ironsides Ray and Vials, which emphasise the weight to be attached to finality and suggest that a review cannot generally be justified on the basis of the incompetence of a party’s representative, require reconsideration in the light of the over-riding objective – Sodexho v Gibbons and Williams v Ferrosan considered.
Underhill J said: ‘There is in this field as in others a tendency – often denounced but seemingly ineradicable – for broad statutory discretions to become gradually so encrusted with case-law that decisions are made by resort to phrases or labels drawn from the authorities rather than on a careful assessment of what justice requires in the particular case. Thus a periodic scraping of the keel is desirable.’

Underhill J
[2010] UKEAT 0393 – 09 – 2301
England and Wales
CitedFlint v Eastern Electricity Board EAT 1975
The employee had failed to mention at the hearing of his claim for a redundancy payment a fact which was arguably highly material to the issue of whether his refusal of alternative employment was reasonable; and his claim had been dismissed. He . .
CitedTrimble v Supertravel Ltd EAT 1982
The Industrial Tribunal had held that the appellant’s dismissal was unfair but then decided that she had failed to mitigate her loss. At the conclusion of the hearing, the Tribunal announced its decision and stated that she was to get no . .
CitedLindsay v Ironsides Ray and Vials EAT 27-Jan-1994
The industrial tribunal had refused the applicant an extension of time.
Held: The Tribunal mistook the law in holding that it could grant a review of its decision because the employee’s case had not been properly argued at the preliminary . .
CitedBritish Midland Airways Limited v Lewis EAT 1978
An airline pilot complained that he had been unfairly dismissed and the Industrial Tribunal, without considering whether or not they had jurisdiction to hear the complaint on the ground that the employee might ordinarily work abroad, found that the . .
CitedD G Moncrieff (Farmers) v MacDonald EAT 1978
The ability of a tribunal to revisit its own judgments, the review procedure, was only appropriate for use in exceptional circumstances. . .
CitedSodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
CitedWilliams v Ferrosan Ltd EAT 5-Mar-2004
Acting on guidance, the parties representatives and the tribunal had assumed that part of the award relating to loss of future earnings would not be taxable. The question now was whether the tribunal had power of its own motion to review its . .
CitedArthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
CitedJurkowska v Hlmad Ltd CA 19-Mar-2008
The employer wanted to appeal against a decision of the Employment Tribunal but was out of time.
Rimer LJ said: ‘that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may . .
CitedDhedhi v United Lincolnshire Hospitals NHS Trust EAT 22-Jan-2002
The Employment Tribunal had decided that a Polkey discount was to be made. At a subsequent remedies and review hearing, the Tribunal allowed the appellant to re-open that issue and having heard evidence, the Tribunal altered the percentage Polkey . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 09 November 2021; Ref: scu.396731