Richardson v Canterbury College

Appellate interference with a discretionary review decision is justified where the Employment Judge applied the wrong legal approach or failed to consider material matters. Where a claimant’s communications provide credible evidence that an ambiguous tribunal letter was not understood as rejecting an application to extend or waive a deposit, the Judge must consider the claimant’s actual understanding and whether any misunderstanding was reasonable in context. A failure to do so may render the review decision unsafe. The appeal should ordinarily be remitted where further factual investigation is required.

The claimant, a lecturer dismissed by the respondent, was ordered at a pre-hearing review to pay a £200 deposit under rule 20 of the Employment Tribunal Rules by 4 May 2011. She applied both for more time and for waiver of the deposit. The Tribunal replied that the deposit order could not be extended in the way proposed. The deposit was not paid and the claim was struck out.

The Employment Judge refused a review, concluding that the claimant knew her extension application had been refused. The central issue before the Employment Appeal Tribunal was whether the Judge had failed to consider evidence that the claimant understood the letter as dealing only with the extension application and remained awaiting a decision on waiver.

1. The appeal was allowed and the matter was remitted to the Employment Tribunal for reconsideration of whether to grant a review, in the light of the judgment and any further representations.

2. The decision whether to grant a review is discretionary. An appellate tribunal should not interfere unless the Judge adopted an erroneous approach in law, failed to take account of a relevant matter, or took account of an irrelevant matter.

3. It was a relevant consideration that the claimant might not have understood the letter of 27 April 2011 as rejecting her waiver application. The letter referred to both applications and was arguably capable of the interpretation the claimant appeared to have placed upon it. Her contemporaneous emails supported that understanding.

4. The Employment Judge should have considered not merely whether the claimant had been told that her application was refused, but whether she understood that to be the effect of the communication and, if not, whether that misunderstanding was reasonable in the circumstances. Although litigants cannot ordinarily rely on misunderstanding a perfectly clear order where their interpretation is unreasonable, the material before the Judge provided a credible basis for a different conclusion in this case.

5. The Employment Appeal Tribunal could not properly substitute its own decision because the claimant also relied on matters allegedly said by Tribunal staff, which might require investigation.

1. Employment Tribunal: ordered payment of a £200 deposit by 4 May 2011, later struck out the claim for non-payment, and refused the claimant’s application for review.

2. Employment Appeal Tribunal: allowed the appeal and remitted the review application to the Employment Tribunal for reconsideration.