Byrnes v Bluesky Financial Claims & Anor (Practice and Procedure : Review)

A tribunal considering an application to review a decision must consider whether the application, read fairly, raises a challenge to the substance or fairness of that decision. An imperfectly expressed challenge may suffice where the interests of justice require reconsideration.

An apparent error in the decision sought to be reviewed does not alone require a review if it was not raised. However, where the application puts the issue in play, the apparent merits of that error are a matter of substantial weight.

For a shortfall in wages treated as a deduction under Employment Rights Act 1996, section 23(2)(a) runs from the actual date of payment from which the deduction was made, rather than necessarily from termination or the contractual due date.

The claimant brought claims including unlawful deductions from wages. At a review hearing, the Employment Judge restored the proceedings after the claimant had missed an earlier hearing, but then dismissed the claims as out of time by treating the date employment ended as the relevant starting point.

The claimant sought a further review. His letter stated that the Judge had accepted his account but dismissed the claim because it was late. The Judge refused the further review. The claimant appealed that refusal to the Employment Appeal Tribunal.

The central issues were whether the review letter sufficiently challenged the limitation decision and, if so, whether the Employment Judge had applied the correct limitation rule to an alleged shortfall in wages.

1. Appeal allowed and remitted. The appeal concerned the refusal to review the decision sent to the parties on 28 November 2011, rather than the merits of the claimant’s underlying wage claim.

2. The claimant’s review letter was not confined to explaining why his claim had been presented late. Its statement that the Employment Judge had accepted his account but dismissed it for lateness conveyed dissatisfaction with both the way the point had arisen and the correctness of the decision. Although expressed obliquely, it was sufficient to require reconsideration in the interests of justice.

3. An error in the decision sought to be reviewed does not, without more, itself establish an error of law in refusing a review. The error must in some way be raised by the application. Once material raises it, however, the apparent merits of the original decision must weigh substantially in the review balance.

4. On the alleged facts, the claim concerned a shortfall in wages, which is treated as a deduction by section 13(3) of the Employment Rights Act 1996. Under section 23(2)(a), time ran from the actual payment of wages from which the deduction was made. It did not run from the date employment terminated unless that was also the payment date. The Employment Judge’s contrary approach was therefore erroneous in law. The facts and the merits of the deductions remained for the Employment Tribunal.

5. The case was remitted to Employment Judge Dawson to reconsider the refusal to review in light of the adequately raised limitation issue and the strong argument that the original decision adopted the wrong basis.

• Employment Appeal Tribunal: Allowed the appeal from the refusal of a further review and remitted the matter to the Employment Tribunal.
• Employment Tribunal: Employment Judge Dawson, in a decision sent on 28 November 2011, dismissed the claims as out of time after reviewing an earlier dismissal for non-attendance. The Judge refused a further review by letter dated 6 February 2012.