Newcastle upon Tyne City Council v Marsden

The interests-of-justice ground for reviewing an Employment Tribunal decision is a broad discretion and should not be confined by rigid exceptional-circumstances or procedural-mishap formulas. Nevertheless, finality in litigation remains an important principle, and parties will ordinarily bear the consequences of their representatives’ errors.

A review may be justified where a representative’s lack of frankness deprives a party of an adjournment which the Tribunal would otherwise have granted. That is materially different from an ordinary case of fresh evidence or incompetent advice. The Tribunal must balance finality, prejudice to the successful party and the particular injustice caused to the applicant.

The respondent brought disability discrimination and unfair dismissal claims against the Council. At a pre-hearing review, the issue was whether his ankle injury had effects likely to last more than twelve months. He did not attend, and his counsel did not explain his absence or seek an adjournment on that basis. The claim was dismissed.

On review, the Employment Judge found that counsel had advised the respondent that attendance was unnecessary, had failed to disclose that advice, and had thereby lost the opportunity of an adjournment. The Judge revoked the dismissal under rule 34(3)(e) and directed a further hearing. The Council appealed, relying principally on the finality principles in earlier review authorities and the general rule that representative error should not justify review.

1. Appeal dismissed. The Employment Judge’s reliance on rule 34(3)(a) was erroneous: counsel’s advice was not an administrative error. The decision was nevertheless sustainable under rule 34(3)(e).
2. The overriding objective requires cases to be dealt with justly, but it does not displace the principles underlying Flint v Eastern Electricity Board and Lindsay v Ironsides Ray & Vials. Finality and the successful party’s legitimate expectation that a substantive decision is final remain important. Representative error will ordinarily not justify a review.
3. The authorities should not be treated as imposing rigid tests such as an exceptionality hurdle or a procedural-mishap requirement. The question remains whether, on the particular facts, the interests of justice require review.
4. The decisive facts were that counsel had misled the Tribunal by failing to disclose the advice given to the respondent and that this deprived the respondent of an adjournment which would probably have been granted. Those facts constituted an exceptional circumstance distinguishing the case from ordinary representative incompetence. The Council suffered no prejudice beyond reopening a case it believed concluded, and that prejudice could be addressed by costs.
5. The Employment Judge was wrong to suggest that counsel might owe no duty of care concerning advice about attendance, in view of Arthur J.S. Hall & Co v Simons. He also went too far in treating a possible remedy against counsel as inherently of little weight. Those errors did not invalidate the result. The EAT would in any event have reached the same conclusion under section 35(1) of the Employment Tribunals Act 1996.

• Employment Appeal Tribunal: upheld the Employment Judge’s decision to revoke the dismissal and direct a further hearing.
• Employment Tribunal: dismissed the disability discrimination claim at a pre-hearing review, then reviewed and revoked that decision under rule 34(3)(e).