Weare v HBOS Plc

An application to review an Employment Tribunal judgment must be made within the prescribed period. In deciding whether to extend time, the tribunal may consider delay after the applicant acquired the relevant knowledge and whether there is a good explanation.

A review is not a means of introducing evidence which could have been relied upon at the original hearing. A later claim is liable to be struck out where it merely re-litigates matters which were, or should have been, included in the earlier proceedings. Communications which add no new detriment do not create a fresh cause of action.

The claimant brought claims against his former employer for constructive unfair dismissal, whistleblowing dismissal, whistleblowing detriments and unauthorised deductions from wages. A full Employment Tribunal dismissed all claims in February 2009.

The claimant’s out-of-time review application relied on information concerning notifications to the FSA about disciplinary proceedings. A later claim alleging whistleblowing detriment was struck out. The claimant also challenged decisions concerning access to unredacted documents. The Employment Appeal Tribunal considered the review appeal, the proposed appeal against the strike-out order and the Registrar’s decision.

1. Review appeal dismissed. The application for review was made substantially outside the 14-day period. The Employment Tribunal was entitled under ET rule 35(1) to refuse an extension. It could take account of the delay between the claimant’s alleged discovery of the relevant information and his application, and no satisfactory explanation had been advanced.

2. The review application also lacked merit. The earlier email merely notified the FSA of a forthcoming disciplinary hearing. The alleged detriment arose, if at all, from the later notification of the disciplinary outcome, of which the claimant had been informed before the original hearing. The claimant either raised the point before the original Tribunal and failed to persuade it, or ought to have raised it. The rule in Henderson v Henderson [1843] 3 Hare 100 therefore applied.

3. Registrar’s appeal dismissed. The documents and the claimant’s applications concerning redactions had been before the original Tribunal. Any challenge should have been made in the appeal against the substantive judgment, which had not succeeded. The claimant could not reopen the issue through subsequent appeals.

4. Strike-out appeal dismissed. The later communications did not create a new detriment. The fresh claim was an attempt to reopen matters which were, or should have been, determined in the original proceedings. It was also presented outside the primary three-month limitation period. The Employment Judge was entitled not to extend time, and there was no reasonably arguable prospect of success.

5. All appeals were dismissed.

• Employment Appeal Tribunal: dismissed the review appeal, the Registrar’s appeal and the application under rule 3(10) concerning the strike-out order.
• Employment Tribunal: the original Tribunal dismissed all substantive claims on 9 February 2009. Employment Judge Freer dismissed the review application on 2 February 2010. Employment Judge Salter struck out the later claim on 24 August 2010.