Davies v Cornwall Council & Anor

An Employment Tribunal considering a review based on new evidence must exercise its broad discretion by balancing the interests of justice. It should not apply restrictive formulae or allow finality alone to determine the application.

The likely result of a rehearing may properly be considered. Relevant matters include the probable finding on the central dismissal issue, likely contributory fault and recovery, the elapsed time, and the practical burden of a rehearing. Delay may remain relevant even where the applicant did not cause it. Appellate intervention is unavailable unless an error of law is shown or perversity is overwhelmingly established.

The claimant, a teacher, had unsuccessfully claimed unfair dismissal after the respondents dismissed her for some other substantial reason, namely an asserted breakdown of trust and confidence.

Following freedom of information requests, she obtained documents which had not been disclosed at the original hearing. She applied for a review under rule 34(3)(d) and (e) of Schedule 1 to the applicable 2004 Rules, seeking a rehearing. The Employment Tribunal accepted that the documents should have been disclosed but treated the omission as a genuine mistake. It declined to revoke its original decision.

The claimant appealed, contending that the Tribunal applied the wrong review test, wrongly considered contributory fault and delay, failed to consider the surrounding circumstances, and reached a perverse conclusion.

1. Appeal dismissed. The Employment Tribunal made no error of law in refusing a review and rehearing.

2. A review under rule 34(3)(e) involved a broad interests-of-justice discretion. The Tribunal had to balance the importance of finality against the possibility that the new material might affect the result. It had not adopted a restrictive or erroneous test. Its assessment that a further tribunal was likely to reach the same conclusion on the central issue was an evaluative finding open to it.

3. The Tribunal was entitled to consider the probable practical value of a rehearing. Although the authorities on the value of an unfair-dismissal finding were not resolved, the Tribunal had not rejected the application solely because compensation might be reduced to nil. It permissibly treated the likelihood of substantial or total contributory fault, and hence limited recovery, as one factor in the overall balance.

4. The passage of time was also relevant. The Tribunal did not find deliberate non-disclosure and did not treat delay as determinative. A rehearing would require detailed reconsideration of events many years earlier; that difficulty affected all concerned and could properly be weighed.

5. The Tribunal properly focused on whether the respondents could reasonably conclude that trust and confidence had broken down. It was not required to address every peripheral point separately. The new documents admitted of more than one interpretation and did not compel a rehearing. The high perversity threshold in Yeboah v Crofton was not met.

• Employment Appeal Tribunal: appeal dismissed; the refusal to review the original Employment Tribunal judgment was upheld.
• Employment Tribunal: on 3 September 2012, refused the claimant's application to review its earlier unfair-dismissal judgment of 18 June 2009.
• Employment Tribunal: dismissed the claimant's unfair-dismissal claim, holding that dismissal for breakdown of trust and confidence was for some other substantial reason and was not unfair.