AB v Home Office (Practice and Procedure : Review)

An Employment Tribunal should ordinarily reconsider its judgment where it has wholly failed to determine an issue which was before it. That failure makes determination of the issue necessary in the interests of justice.

Different considerations apply where the Tribunal decided the issue but its reasons were incomplete or could have been fuller. A review or reconsideration is not a means of improving reasons where there is no reasonable prospect that the judgment will be varied or revoked. An appeal from refusal of review is not a substitute for a late appeal from the substantive judgment.

The claimant, an employee of the Home Office, brought disability-discrimination and unfair-dismissal claims arising from disciplinary proceedings. The Employment Tribunal upheld parts of his claims concerning the conduct of the disciplinary and appeal hearings, but dismissed his other disability-discrimination complaints.

The claimant contended that the Tribunal had overlooked his separate complaint about a six-month written warning imposed for refusal to meet a manager. Employment Judge Grewal refused his review application at the preliminary stage. The claimant's direct appeal from the liability judgment was out of time. The sole arguable ground before the Employment Appeal Tribunal was whether the warning issue had been overlooked and, if so, whether the interests of justice required a review.

1. Appeal dismissed. The Employment Judge was entitled to refuse review under rule 35(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The decisive question was whether there was a reasonable prospect that the liability judgment would be varied or revoked.

2. The Tribunal had not wholly omitted the written-warning complaint. Its findings addressed the May events and the reason for the warning. Its disposition, upholding specified complaints about the disciplinary process while dismissing all other disability-discrimination complaints, was intended to dispose of the warning complaint as well.

3. The reasons could usefully have dealt more expressly with the claimant's particulars concerning the warning. That was, however, at most a deficiency in reasons. The underlying May incident was outside the Tribunal's jurisdiction, and its findings left little, if anything, of the remaining complaint about the warning. There was therefore no reasonable prospect of a different result.

4. The EAT distinguished a complete failure to decide an issue from a failure to give adequate reasons. In the former case, reconsideration can and usually should be arranged because the Tribunal must determine the outstanding issue. In the latter, neither the 2004 Rules nor the successor 2013 Rules permit the judgment to be reopened merely to improve reasons when variation or revocation has no reasonable prospect.

5. The Burns/Barke procedure may enable the EAT to seek clarification or supplementary reasons. It also permits an omitted issue to be addressed by review or reconsideration. It does not convert an appeal against refusal of review into an appeal against the substantive judgment, particularly where the latter was not brought in time.

• Employment Appeal Tribunal: dismissed the claimant's appeal from Employment Judge Grewal's refusal to review the Employment Tribunal's liability judgment.
• Employment Tribunal: liability judgment sent on 16 April 2012. It upheld specified disability-discrimination complaints and the unfair-dismissal complaint, but dismissed the remaining disability-discrimination complaints. The review application was refused on 28 May 2012.