Benney v Department for Environment Food and Rural Affairs (Practice and Procedure: Review)

Under Rule 35(3), whether it is practicable for the original Employment Judge to consider a review application is a question of fact and degree. It must be decided consistently with the overriding objective, including expedition, proportionality, fairness and saving expense. It is not confined to physical impossibility.

An error on that issue does not necessarily make the subsequent decision a nullity. A review application may also fail because of delay, lack of merit, or a binding settlement which has brought the proceedings to an end. New evidence may found a late review application, but the Tribunal may still refuse an extension where the delay lacks adequate explanation and the material would not affect the result.

The claimant had been dismissed and brought an Employment Tribunal claim, including an application for interim relief based on alleged protected disclosures. The interim-relief application was refused. The claimant later settled his employment claim by a COT3 agreement, withdrew it, and the claim was dismissed.

After obtaining less-redacted documents through a freedom of information request, he applied almost two years after the interim-relief decision for a review based on new evidence. A Regional Employment Judge considered the application because the original Judge had moved region, and rejected it as late and without merit. The claimant also sought a preparation time order after the proceedings had ended. He appealed both decisions.

The central issues were the meaning of practicability under Rule 35(3), whether any error made the review decision a nullity, whether time should have been extended, and the effect of the COT3 settlement.

1. Both appeals were dismissed. The Regional Employment Judge was entitled to decide that it was not practicable for the original Judge to undertake the preliminary consideration of the review application.

2. Rule 35(3) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 required a practical assessment informed by the overriding objective. Practicability was not restricted to cases of death, retirement, incapacity or inability to communicate with the original Judge. The relevant circumstances included the original Judge’s move to another region, the destruction of the file, the lengthy delay, and whether the Judge’s prior knowledge could usefully assist. The issue was one of fact and degree, challengeable only on perversity grounds. The decision reached was plainly open to the Regional Employment Judge.

3. Even if it had been practicable for the original Judge to act, that fact was not a jurisdictional condition precedent whose absence made the Regional Employment Judge’s entire decision void. The Judge had properly to decide practicability, delay and merit. The overriding objective and the absence of prejudice meant that an error on the identity of the Judge would not invalidate a paper-based decision which would in any event fail on other grounds.

4. The refusal to extend the 14-day period for a review was not perverse. A new-evidence application could be made after the primary period, but the Tribunal could consider the applicant’s delay in seeking the evidence and in applying after receiving it. The less-redacted material did not demonstrate that the interim-relief decision was likely to have been different.

5. The COT3 agreement remained binding. The claimant had neither set it aside nor sought to do so. It required withdrawal of the proceedings and outstanding applications or appeals, and the claim had been finally dismissed. There were therefore no extant proceedings in which either the review application or the preparation-time application could be pursued. The first appeal was, independently, an abuse of process.

6. The former President’s refusal of a preparation time order was a judicial decision. However, the application still failed because the underlying proceedings had ended and the claimant had agreed not to make further applications or appeals arising from them.

• Employment Appeal Tribunal: Both appeals were dismissed.
• Employment Tribunal: The Regional Employment Judge rejected the late review application concerning the interim-relief decision. The former President rejected the application for a preparation time order because no live proceedings remained.
• Employment Tribunal: The claimant’s employment claim was dismissed on withdrawal following a binding COT3 settlement agreement.