Pugh v RT Electrics Ltd

An Employment Tribunal’s unchallenged determination that a claim may proceed out of time is binding at the later merits hearing. A subsequent Tribunal cannot reopen that jurisdictional issue merely because the evidence ultimately establishes a narrower factual claim than originally pleaded.

Reconsideration of a judgment is a statutory procedural concept. Any reconsideration, including one initiated by the Tribunal, must comply with the mandatory procedure in the Employment Tribunals Rules of Procedure, including proper notice and a reasonable opportunity to be heard. A Tribunal cannot reverse an earlier judgment informally. Where the final hearing establishes the claim on a limited factual basis, the proper course is to give effect to that finding.

The Claimant brought disability discrimination and reasonable-adjustment claims against his former employer. At a preliminary hearing, the Employment Tribunal determined that Claim 4 had been presented out of time but that it was just and equitable under section 123 of the Equality Act 2010 to extend time, so the Tribunal had jurisdiction.

At the subsequent final hearing, a separate Tribunal found that the underlying claim was established only in relation to a single incident in 2011. It nevertheless treated the claim as out of time and dismissed it for want of jurisdiction. The Claimant appealed, arguing that the earlier decision was binding and that the later Tribunal had acted unfairly by revisiting the issue without notice.

1. Appeal allowed. The preliminary decision that Claim 4 could proceed despite being out of time was a final determination of jurisdiction. Since it had not been appealed, issue estoppel prevented the later Tribunal from reopening the same legal issue. The fact that the evidence established a single incident, rather than the continuing act originally pleaded, narrowed the claim but did not alter the earlier determination.
2. The later Tribunal had not properly undertaken a reconsideration. Reconsideration of judgments is not a common-law concept; it has the statutory meaning given by the Rules in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The mandatory requirements, including consideration of the reasons for reconsideration, whether a hearing was unnecessary in the interests of justice, and the practicability of the original judge undertaking the reconsideration, had not been addressed.
3. The scope of reconsideration under the Rules may be sufficiently wide to permit reversal of a substantive decision, as explained in Stonehill Furniture Ltd v Phillippo [1983] ICR 556, but the procedural safeguards must first be observed. Reconsideration was not justified in any event. The late timesheet was not fresh evidence relevant to the balance of prejudice on the extension-of-time issue; it merely supported the finding that the claim succeeded on a limited factual basis. The approach in Ladd v Marshall [1954] EWCA Civ 1 therefore did not apply.
4. Alternatively, revisiting the issue without notifying the Claimant or giving him a reasonable opportunity to make submissions was procedurally unfair, particularly because he was unrepresented and reasonably understood that the time-limit issue had been finally determined.
5. Paragraphs 10 and 11 of the Tribunal’s judgment were set aside. An order was substituted allowing the indirect discrimination and reasonable-adjustment claims on the limited factual basis established. Remission was unnecessary.

• Employment Tribunal: At a preliminary hearing, determined that Claim 4 was out of time but that it was just and equitable under section 123 of the Equality Act 2010 to extend time. At the final hearing, a separate Tribunal dismissed the claim as out of time.
• Employment Appeal Tribunal: Allowed the appeal, set aside the relevant dismissal paragraphs and substituted an order allowing the claims on the limited factual basis found.