Suhail v Barking Havering & Redbridge University Hospitals & Anor (Practice and Procedure: Review)

An Employment Appeal Tribunal review under Rule 33(1) of the Employment Appeal Tribunal Rules 1993 is an exceptional mechanism for correcting a mistake. It is not a further appeal from the earlier EAT decision.

Where reconsideration of the tribunal's notes and the parties' submissions shows that a party did not implicitly withdraw a statutory contention, the EAT may revoke its contrary finding. If determining the revived contention requires factual investigation, the EAT should remit that discrete issue to a fresh Employment Tribunal rather than decide disputed evidence itself.

The Claimant had brought whistleblowing claims against the two Respondents. The East London Employment Tribunal dismissed them on 6 March 2013 on the ground that he was neither an employee nor a worker under the Employment Rights Act 1996.

On the earlier EAT appeal, the EAT rejected his limb (b) worker case and held that he had implicitly withdrawn, against the First Respondent, an alternative contention under section 43K(1)(a). The Claimant applied to review that finding under Rule 33(1) of the Employment Appeal Tribunal Rules 1993.

The review raised whether the section 43K(1)(a) contention had been withdrawn and, if it had not, whether the EAT could decide the extended-worker issue or had to remit it for fact-finding.

1. Review application granted. The EAT revoked its earlier finding that the Claimant had implicitly withdrawn his section 43K(1)(a) contention against the First Respondent.

2. A review in the interests of justice under Rule 33(1) of the Employment Appeal Tribunal Rules 1993 is rare. Its purpose is to correct a mistake, rather than to provide an appeal against the EAT's earlier decision. The EAT applied the review principles summarised in Zinda v Governing Body of Barn Hill Community High School, [2011] ICR 174.

3. The agreed list of issues and the Claimant's skeleton argument had raised the section 43K(1)(a) point. On reconsidering the Employment Judge's notes of the First Respondent's closing submissions and the Claimant's response, the EAT concluded that the Claimant had addressed that point. His references to section 43K(1)(a)(i) and (ii) were consistent with an argument that the Second Respondent supplied him to work for the First Respondent on terms determined by one or both Respondents. In fairness, the position was materially different from that understood when the earlier reserved judgment was written.

4. The EAT could not decide the substantive extended-worker issue. Whether the First Respondent in practice determined the terms on which the Claimant worked required investigation of agreements and witness evidence. Although both parties invited the EAT to avoid a remittal, in light of Jafri v Lincoln College, [2014] EWCA Civ 449, an appellate tribunal could not undertake that necessary fact-finding exercise.

5. The sole remitted issue was whether the Claimant was a worker vis-à-vis the First Respondent within section 43K(1)(a) of the Employment Rights Act 1996. It was remitted to a fresh Employment Tribunal or Employment Judge for determination.

• Employment Appeal Tribunal: On review, the EAT revoked its earlier implicit-withdrawal finding and remitted the section 43K(1)(a) issue to a fresh Employment Tribunal.

• Employment Appeal Tribunal: In its earlier reserved judgment of 11 June 2015, the EAT rejected the Claimant's limb (b) worker case and held that he had implicitly withdrawn the section 43K(1)(a) point against the First Respondent.

• Employment Tribunal: The East London Employment Tribunal dismissed the whistleblowing claims on 6 March 2013 for want of employee or worker status under the Employment Rights Act 1996.