Practice and procedure –
The claimant was dismissed after some 31 years of employment and sought to pursue claims of unfair dismissal, discrimination and victimisation. The employment tribunal (‘ET’) initially rejected the claim under rule 12 ET Rules, because it had incorrectly named the respondent as Leicestershire City Council. The claimant applied for a reconsideration under rule 13(1)(a), contending that the original rejection had been wrong as, pursuant to rule 12(2A), a minor error had been made and it was not in the interests of justice to reject the claim. In reconsidering its rejection decision, however, the ET treated this as a case where that decision had been correct but the defect that had led to the rejection had been rectified; on that basis it accepted the claim from the date of the application for reconsideration, which meant that the claimant’s claims were out of time (‘the first reconsideration’). Some 12 weeks after the first reconsideration, the claimant applied for the ET to again reconsider the decision to reject the claim, alternatively to vary the first reconsideration. In the decision under appeal, the ET carried out a second reconsideration of the rejection decision, expressly proceeding under rule 13(1)(a) and ruled that there had been a minor error and it was not in the interests of justice to reject the claim, such that rule 12(2A) applied. The respondent appealed.
Held: dismissing the appeal
The ET had erred in the first reconsideration decision, having failed to determine the application on the basis on which it had been put by the claimant: it had treated this as a rectification case when there had been no rectification, the claimant had instead relied on rule 12(2A), saying this had been a minor error and it was not in the interests of justice for the claim to be rejected. A reconsideration decision under rule 13 could not be a judgment (see rule 1(3)(b)) and had to be treated as a case management order; as such, rule 29 permitted the ET to vary, suspend or set aside that decision if it was necessary in the interests of justice to do so. That test was to be determined through the prism of the principle of certainty and finality in litigation and of the integrity of judicial decisions and orders (Serco Ltd v Wells [2016] ICR 768); it would not be open to the ET to revisit an earlier decision because it had had a change of heart or thought better of its earlier reasoning. That said, an ET could revisit an earlier case management decision where there had been a material change of circumstance, or where the order had been based on a material omission or mistreatment or there was some other substantive reason necessitating such interference (E v X, L and Z; L v X, Z and E UKEAT/0079/20 and UKEAT/0080/20). The error made by the ET in the first reconsideration decision amounted to such a material omission or mistreatment and it was entitled to revisit that decision given that the argument the claimant had advanced in her rule 13 application had not been considered (see Hart v English Heritage [2006] IRLR 915). The effect of the decision under appeal had been to set aside the first reconsideration decision and to carry out a reconsideration under rule 13(1)(a). So doing, the ET had been entitled to find there was no prejudice to the respondent, notwithstanding the delay in the claimant’s application for further reconsideration, and had permissibly found that the original mistake on the claim form had been a minor error and that it had not been in the interests of justice for the claim to be rejected.
Citations:
[2022] EAT 109
Links:
Jurisdiction:
England and Wales
Employment
Updated: 19 August 2022; Ref: scu.679496