Employment Appeal Tribunal Clarifies Scope of Tribunal's Power to Reconsider Decisions
A recent Employment Appeal Tribunal (EAT) decision has provided a useful explanation of the limits of the Tribunal's power to reconsider a decision.
What Was the Background to the Case?
In the case of Ebury Partners UK Ltd v Acton Davis, the claimant brought claims for wrongful and constructive dismissal. The Tribunal rejected the claims and the claimant did not appeal to the EAT. Instead, he applied to the Tribunal for a reconsideration of its decision. The grounds for the application focused on substantive rather than procedural issues.
The Tribunal decided to reconsider its judgment and held a hearing which was attended by both parties. The Tribunal's power of reconsideration is set out at rules 70 to 73 of the Employment Tribunal Rules of Procedure 2013 (the Rules). The Rules provide that a Tribunal may, either on its own initiative or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the original decision can be confirmed, varied or revoked. An application for reconsideration is distinct from an appeal to the EAT.
What Did the Tribunal Decide?
At the reconsideration hearing, the Tribunal rejected the claimant's arguments about why the decision should be reconsidered. However, on his own initiative, the judge went on to reconsider the case generally. He reached a view contrary to the conclusion in the original judgment, holding that the respondent had in fact breached the implied term of trust and confidence it owed towards the claimant.
The respondent appealed on the basis that the Tribunal judge should not have carried out a reconsideration at all, and that even if it did carry out a reconsideration it should not have concluded as it did. The claimant also cross-appealed on a point relating to the proper interpretation of his contract of employment.
What Did the EAT Decide?
The EAT allowed the appeal and dismissed the cross appeal. It took into account the importance of finality in litigation. It may be appropriate to reconsider a decision where there has been a procedural mishap, but reconsideration should not be used to correct a supposed error by the Tribunal after the parties have had a fair and proper opportunity to put their case. As there was no alleged procedural error, the Tribunal judge should not have agreed to reconsider the decision in the first place. The claimant should instead have appealed to the EAT in order to take issue on a substantive point.
The EAT also held that even if it had been open to the Tribunal to reconsider its original decision, there was no proper basis for the judge to carry out the general reconsideration that he did. Rule 71 requires a party seeking reconsideration to indicate the grounds for their application, meaning that an application should set out which specific decisions in the judgment the party is inviting the Tribunal to reconsider.
What Can Employers Learn from this Decision?
This decision demonstrates the scope of the Tribunal's power to reconsider its own decision. An application for reconsideration is not an alternative to appealing to the EAT. It should be used for procedural issues only, and not for substantive points that go to the heart of a judgment.