EAT Practice and Procedure : Review – The claimant recovered over andpound;23,000 compensation at a remedies hearing based primarily on loss of earnings for more than 70 weeks. The employer sought a review of that award.
The application for review was put on the basis that a pending appeal to the Employment Appeal Tribunal in relation to another employee (involved in the same incident and dismissed just a few weeks after it) may result in a finding that that employee had not been unfairly dismissed. If the Employment Appeal Tribunal reached that result it may have some significant bearing on whether the claimant would have been similarly dismissed fairly and without discrimination within a matter of a few weeks of the incident. Accordingly, there could potentially be a case for a significant Polkey reduction in this claimant’s award. The employer asked for a stay of the review application pending the outcome of the pending Employment Appeal Tribunal appeal in the other employee’s case.
The employment judge did not stay the review application but gave it preliminary consideration under Rule 35(3). He found the application had no real prospect of success because the circumstances of the two employees were, in his judgment, materially different.
Appeal allowed. The Employment Judge had, in the particular circumstances of this case, erred in rejecting the review application on the basis that it had no reasonable prospect of success. It is passed that threshold and ought either to have been stayed pending the Employment Appeal Tribunal decision in the related appeal or put through for consideration on its merits. Review application remitted for substantive consideration.
Luba QC Rec
[2014] UKEAT 0045 – 14 – 0907
Bailii
England and Wales
Employment
Updated: 20 December 2021; Ref: scu.536438