CK Heating Ltd v Doro

An employment tribunal may recall an oral decision before it has been formally recorded and signed. The power exists independently of the statutory review procedure, although it must be exercised carefully and sparingly.

The controlling question is whether reconsideration is necessary in the interests of justice, having regard to the overriding objective. Finality is important but not absolute. A tribunal may revisit an oral decision where, before completing its reasons, it identifies a possible error of law, particularly where the issue can be addressed without reopening the evidence and both parties receive a proper opportunity to make submissions.

The Employment Tribunal found that the claimant had been unfairly dismissed and announced an oral remedy decision, including a 30 per cent reduction for contributory conduct. Before issuing written judgment and reasons, it identified an arithmetic error, an omitted basic award and a possible inconsistency in its legal reasoning concerning the reduction.

The tribunal purported to review the oral decision but had not sent the notice required by rule 36(2) of the Employment Tribunal Rules of Procedure. The employer appealed against the reconsideration of the reduction. The central issue was whether the tribunal had power to reopen the oral decision, either by review or by recall.

1. Appeal dismissed. The Employment Tribunal had no power to conduct a review under rules 34–36 because it had not sent the parties the required notice of a proposed review. Its written document announced a decision to review, rather than a proposal on which the parties could respond.

2. The appeal was not thereby determined. Following Hanks v Ace High Productions Ltd [1978] ICR 1155, the EAT recognised a residual power to recall an oral decision before it had been formally perfected. The later introduction of an own-initiative review power did not remove that power.

3. The power of recall is governed by the interests of justice, having regard to the overriding objective. Finality ordinarily requires parties to rely on a tribunal’s formal decision, so recall must be used sparingly and cautiously. The observations in Hanks concerning obvious errors or omissions did not establish an inflexible rule excluding reconsideration of a possible error in legal reasoning.

4. Here, the tribunal acted before the process was complete, on its own motion, after giving only brief oral reasons and while preparing written reasons. The issue concerned legal reasoning, required no further evidence, could be dealt with by written submissions, and both parties had a proper opportunity to respond. The tribunal therefore committed no error of law in reopening the relevant aspect of its decision.

1. Employment Appeal Tribunal — appeal against the Employment Tribunal’s purported review dismissed.
2. Employment Tribunal — found the claimant unfairly dismissed and announced an oral remedy decision, later purporting to review part of it before issuing written judgment and reasons.