Aslam v Travelex UK Ltd

On an application to reinstate a claim dismissed for non-payment of an Employment Tribunal fee, the governing criterion is the overriding objective: whether reinstatement would deal with the case fairly and justly. Proportionality and delay are relevant considerations.

A Rule 40 fee-warning notice is not equivalent to an unless order. Its breach does not necessarily carry the same weight in the balancing exercise. Reasons for a procedural decision may be short, but must identify the material facts and make the decision intelligible to parties who know the background. An appellate court should not interfere merely because it might have reached a different conclusion.

The claimant brought claims for unfair dismissal, pregnancy or maternity discrimination, and pay-related claims. Her claim was dismissed after neither the hearing fee nor an application for remission was provided by the specified date.

Employment Judge Hill refused her application under Rule 40(5) of the Employment Tribunal Rules 2013 to reinstate the claim. The claimant appealed, contending that the reasons were inadequate, perverse and contrary to the interests of justice. She also sought to adduce fresh evidence concerning her representative’s illness and, orally, to amend her appeal to challenge a later reconsideration decision.

The central issue was whether the short reasons for refusing reinstatement disclosed an error of law.

1. Appeal dismissed. The Employment Judge applied the correct criterion. Rule 40(5) of the Employment Tribunal Rules 2013 contains no express test, but the overriding objective in Rule 2 requires the Tribunal to decide whether reinstatement would deal with the case fairly and justly.

2. Rule 40(5) provides relief from the statutory consequence of failing to pay a fee or present a remission application. Guidance may be drawn from relief-from-sanction authorities. However, a Rule 40 warning is not an unless order. An unless order follows breach of an existing Tribunal order, whereas a fee notice may involve no such prior breach. Non-compliance with the latter therefore does not automatically have the same weight in the balancing exercise.

3. The reasons, although brief, were legally sufficient. The Judge expressly considered the interests of justice, rejected the asserted explanation that the representative had been unable to deal with the matter, and explained that he had continued corresponding while failing actively to pursue the claim. She was not required to recite every matter apparent from the background or to address an explanation which had not been advanced to her.

4. There was no perversity or other error of law. The appellate tribunal could see why reinstatement had been refused and could not interfere merely because fuller reasons would have been preferable or it might have made a different assessment.

5. The application to adduce fresh evidence was refused. In the absence of an error of law, it was an impermissible freestanding application before the Employment Appeal Tribunal and should have been made to the Employment Tribunal. In any event, the material could with reasonable diligence have been produced earlier and was not shown likely to affect the result. The late oral application to amend the Notice of Appeal to challenge the reconsideration decision was also refused.

• Employment Appeal Tribunal: dismissed the appeal from Employment Judge Hill’s refusal, by letter dated 31 October 2014, to reinstate the claim under Rule 40(5) of the Employment Tribunal Rules 2013.
• Employment Tribunal: dismissed the claim for non-payment of the hearing fee or failure to submit a remission application, and later refused an out-of-time reconsideration application on 16 April 2015.