Oyesanya v South London Healthcare NHS Trust

An Employment Judge may summarily refuse a review application under rule 35(3) where it has no reasonable prospect of success. Reasons may be brief where the application is determined on paper and the procedural history makes the basis of the decision clear.

An application to extend time for payment of a deposit does not itself extend the prescribed period. The extension must be granted. Although an Employment Judge may retrospectively extend time of their own motion, a failure to do so is not perverse where the party did not seek that relief and the circumstances do not justify indulgence.

The claimant brought Employment Tribunal claims of race and age discrimination. Following a Pre-Hearing Review, he was ordered to pay deposits as a condition of continuing those claims. He applied for a review and an extension of time, but neither was granted. He paid the deposits late and the claims were struck out.

He then sought a review of the strike-out in the interests of justice. Employment Judge Kurrein refused the application on paper, stating that it had no reasonable prospect of success. The claimant appealed, alleging inadequate reasons, perversity, and a failure to grant a retrospective extension of time of the Judge's own motion.

1. Appeal dismissed. The Employment Judge was entitled to refuse the review application without a hearing under rule 35(3) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.

2. The statement that there was no reasonable prospect of success identified the correct statutory test. In the unusual procedural context, it also gave adequate reasons. The claimant's sole substantive basis for review was an asserted misunderstanding of the deposit-payment arrangements. The Judge was entitled to regard that basis as incapable of succeeding.

3. The reasons challenge did not succeed merely because fuller reasons might have been appropriate after a hearing. The adequacy of reasons depends on the subject matter and context. Nor was it appropriate, nearly three years after the summary decision, to seek further reasons through the Barke procedure.

4. The perversity challenge failed. The claimant's status as a litigant in person caused no relevant prejudice. The accompanying note accurately reflected rule 20(4): an application for an extension did not itself extend time. The late payment was not an overriding consideration, and the Judge was entitled to weigh compliance with orders, procedural timetables, expedition and fairness alongside the claimant's interests.

5. Rule 10 permitted a retrospective extension of time even without an application, as recognised in Sodexho Ltd v Gibbons, [2005] IRLR 836. However, the claimant had not sought that relief and the circumstances did not make the failure to grant it perverse.

• Employment Appeal Tribunal: appeal dismissed. The refusal to review the strike-out was upheld.

• Employment Tribunal: Employment Judge Kurrein struck out the discrimination claims for late non-payment of deposits, then refused a review application on paper under rule 35(3) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.