The claimant applied for reconsideration of a judgment given by an employment tribunal, sitting as a panel, which dismissed the claimant’s claims of race discrimination, harassment, victimisation and wrongful dismissal but found that the claimant had been unfairly dismissed. However, since the tribunal concluded that the claimant had contributed entirely to his dismissal through his conduct and would have been dismissed even if a fair procedure had been followed, the tribunal made no award. The judge who chaired the panel refused the application for reconsideration on the papers. The claimant appealed on the ground, inter alia, that the judge erred in deciding the reconsideration application as a judge sitting alone since, pursuant to rule 72(3) of the Employment Tribunals Rules of Procedure 2013, the decision should have been made by the same tribunal which had reached the original liability judgment.
On the appeal—
Held, appeal allowed. It was clear from the wording of rule 72(1) of the Employment Tribunals Rules of Procedure 2013 that there was a prescribed manner, which was mandatory, in which a reconsideration application had to be considered. There were only two explanations for how the judge had approached the reconsideration application. The first was that she decided that it had no reasonable prospects under rule 72(1), although she did not say that in her decision. The second and more likely explanation was that the judge had progressed straight to the second stage under rule 72(2). If she had, she erred because that would require a full panel decision, unless special circumstances applied. In the present case, the judge’s decision was a second stage decision pursuant to rule 72(2), for two reasons. First, the judge explicitly stated that she intended to make a decision pursuant to rule 72(2), in correspondence to the parties. Second (and more importantly), the substance of the reconsideration decision did not deal with reasonable prospects, relevant to rule 72(1). Instead, the judge considered the full merits of the reconsideration application. In doing so, the judge erred in two respects. First, the judge missed out the sift stage under rule 72(1) and thereby deprived the respondent of the possibility that the application might be refused at that stage. Second, the judge erred in making a decision which should have been taken by the full employment tribunal. Employment tribunal panel members did not simply rubber stamp an employment judge’s decision. The fact that it was open to the judge to reach the decision she did on the merits of the reconsideration application did not supplant the need for the tribunal, as a whole, to have had the opportunity to consider the reconsideration application. Even if there was no error in failing to hold a hearing, it was not argued that it would have been perverse for a tribunal to have done anything other than to refuse the reconsideration application, and there remained a possibility that the panel members might disagree, or have disagreed, with the judge’s conclusion. That important safeguard was missed, and, as a consequence, the judge’s decision was unsafe and had to be set aside. The case would be remitted to a different judge to make a first stage consideration under rule 72(1) (paras 18, 19, 29, 30, 37).
Lee Bronze (instructed directly) for the claimant.
Rebecca Thomas (instructed by Eversheds Sutherland (International) LLP) for the respondent.