Ahmadi- Assalemi v NCR Ltd

An Employment Judge may refuse a review application at the preliminary stage where, even assuming an arguable review ground, there is no reasonable prospect that the earlier decision will be varied or revoked. The Employment Appeal Tribunal will interfere with that evaluative and discretionary decision only where the demanding perversity threshold is met.

A represented party’s application for a review, which maintains that payment was timely, need not be construed as an application retrospectively to extend time for payment. Nor must an Employment Judge identify and exercise an uninvoked procedural power of his own motion to cure a default.

The claimant brought Employment Tribunal claims for race and age discrimination. Following a pre-hearing review, the Tribunal ordered him to pay deposits totalling £1,000 in respect of specified allegations which had little reasonable prospect of success.

The deposits were not received within 21 days and no timely application for an extension was made. The Tribunal struck out the affected allegations. A direct appeal against that order had already been dismissed. The claimant then sought a review, asserting that the cheque had been posted in time, that he received the order late, and that there might have been an administrative delay.

The Employment Judge refused the review application at the preliminary stage. The appeal concerned whether that refusal, or the failure to treat the application as a retrospective application to extend time, was perverse.

1. Appeal dismissed. The Employment Judge was entitled under rule 35(3) of the Employment Tribunal Procedure Rules 2004 to refuse the review application because it had no reasonable prospect of causing the strike-out decision to be varied or revoked.

2. The Judge’s wording showed that he had considered whether the matters relied on might fall within rule 34(3)(a) or (e). He nevertheless concluded that they gave the application no real prospect of success. That was an evaluative and discretionary judgment. The Judge had detailed prior knowledge of the claim and of its procedural history. The Employment Appeal Tribunal could not characterise his conclusion as perverse merely because another Employment Judge might have interpreted the solicitors’ letter more generously.

3. The letter was reasonably read as asserting that the deposit had been paid in time, rather than seeking a retrospective extension under rule 20(4)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. It did not expressly request such an extension. The subsequent evidence from the solicitor confirmed that an extension had not been considered necessary. The Judge was therefore not perverse in declining to construe the review application as an extension application.

4. The claimant’s further reliance on rule 10 was raised too late, having been omitted from both the review application and the notice of appeal. In any event, an Employment Judge is not required to search the procedural rules for an unasked-for means of relieving a legally represented party from a procedural default.

• Employment Appeal Tribunal: The appeal from the refusal of a review application was dismissed.
• Employment Appeal Tribunal: A separate direct appeal against the strike-out order was dismissed by Wilkie J.
• Employment Tribunal: Employment Judge Mahoney struck out the specified allegations for late non-payment of deposits and later refused the claimant’s application to review that order.