GM Packaging (UK) Ltd v Ottey (Practice and Procedure : Review)

An Employment Tribunal should reject a review application under Rule 35(3) only where it has no reasonable prospect that the earlier decision will be varied or revoked. This is a high threshold.

When assessing a possible Polkey reduction, the material question is what the particular employer would probably have done had it acted fairly and without discrimination. The Tribunal must consider evidence on which it can properly rely. A related finding that the same employer fairly dismissed another employee shortly after the same incident may be materially relevant, despite differences between the employees. Such differences do not justify disposing of the review application at the threshold without substantive consideration.

The claimant was summarily dismissed after an incident at the employer's premises. The Employment Tribunal upheld her claims for sex discrimination and unfair dismissal. At a later remedies hearing it awarded £23,557.32, largely for loss of earnings, and declined to make a further Polkey reduction.

A senior employee involved in the same incident was also dismissed. The Employment Appeal Tribunal later held that his dismissal had been fair. The employer then applied to review the claimant's remedy award, contending that this result could support a substantial Polkey reduction. Employment Judge Buchanan rejected the application under Rule 35(3), holding that it had no reasonable prospect of success because the two employees' circumstances materially differed.

The employer appealed. The central issue was whether the potential significance of the related employee's fair dismissal meant that the review application should proceed to a merits determination.

1. Appeal allowed. The Employment Judge erred in rejecting the review application at the threshold stage under Rule 35(3) of the Employment Tribunal Rules.

2. The threshold is relatively low. A review application should be excluded only if there is no reasonable prospect that the decision may be varied or revoked. This application plainly passed that threshold.

3. The Judge treated the factual and legal differences between the claimant and the senior employee as necessarily preventing the latter's appeal outcome from affecting the claimant's Polkey position. That was a misdirection. The relevant inquiry is what this particular employer would likely have done had it dismissed the claimant fairly and without discrimination.

4. The finding that the employer had fairly dismissed the senior employee within weeks of the same incident could be material evidence in that inquiry. It did not determine the claimant's position, but it created a realistic basis for reconsidering whether she would also have been fairly dismissed during the compensable period.

5. The review application was remitted to the same Employment Tribunal for substantive determination, in reality upon a substituted or amended application reflecting the subsequent appeal decision. The EAT declined to determine the Polkey assessment itself. There was no sufficient basis to conclude that the original Tribunal could not fairly determine the remitted application.

• Employment Appeal Tribunal: Allowed the employer's appeal and remitted the review application to the same Employment Tribunal for consideration on its merits.
• Employment Tribunal: Awarded the claimant £23,557.32 at a remedies hearing after upholding liability. Employment Judge Buchanan later refused the employer's review application at the Rule 35(3) threshold stage.