The Practice Surgeries Limited v Surrey Primary Care Trust (Now Secretary of State For Health) & Dr K Srivatsa

An Employment Tribunal must comply with the procedural safeguards governing reconsideration. A party affected by an application must be given the required opportunity to respond, and the Tribunal must give reasons for extending a substantially expired time limit and for resolving disputed procedural issues.

A revocation founded on a factual error cannot stand where the material said to have been withheld was before the Employment Judge. Following an unequivocal withdrawal, an outstanding timely application for dismissal under the earlier Rules could be determined later. The effect of that dismissal on separate High Court proceedings was for the High Court, not the Tribunal, to decide.

The claimant, a salaried GP, withdrew Employment Tribunal claims against two respondents in 2011. Both respondents promptly applied under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 for dismissal. The Tribunal did not then make a clear dismissal judgment.

In October 2014, Employment Judge Martin dismissed the proceedings following withdrawal. The claimant sought reconsideration 111 days later. The application was neither copied to the second respondent nor followed by the prescribed opportunity for that respondent to respond. The Employment Judge revoked the dismissal, extended time, and later refused the respondents’ application to reconsider that revocation.

The respondents appealed. The central questions were whether the revocation and refusal of reconsideration complied with the 2013 Tribunal Rules, and whether the 2014 dismissal remained effective.

1. Appeal allowed. The revocation order of 5 March 2015 was set aside. The dismissal judgment of 13 October 2014 remained in force.
2. The Employment Judge’s failure to invite the second respondent to respond to the claimant’s reconsideration application breached Rule 72(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It was a fundamental, not technical, failure. The respondents were separately represented and had opposing interests on the transfer issue. The breach was sufficient to set aside the revocation at least as against the second respondent.
3. The reconsideration application was made 111 days after the dismissal judgment, rather than within Rule 71’s 14-day period. Although Rule 5 permitted an extension, the Employment Judge gave no reasons, as Rule 62 required, for extending time by almost 100 days on a disputed and potentially jurisdictional issue.
4. The stated basis for revocation was unsustainable. The Employment Judge said that the claimant’s earlier objection to dismissal had not been brought to her attention. However, the respondent’s 2014 application enclosed the claimant’s 2011 email expressly objecting to dismissal.
5. The respondents’ timely 2011 dismissal applications had remained outstanding. The 2014 dismissal determined them. The claimant’s withdrawal was unequivocal and, applying Verdin and Ako, the contemporaneous material showed an intention to abandon the claim. The claimant had not reserved a right to bring a further claim. The possible estoppel effect in High Court proceedings was for that court to determine.
6. Although unnecessary to the result, the Employment Judge’s later refusal to reconsider the revocation also failed to give adequate reasons. Nayif, concerning the effect of a dismissal judgment on later proceedings, was irrelevant to the Tribunal application.

• Employment Appeal Tribunal: Allowed the respondents’ appeals and set aside Employment Judge Martin’s revocation order of 5 March 2015.
• Employment Tribunal: Employment Judge Martin dismissed the withdrawn proceedings on 13 October 2014; revoked that judgment on 5 March 2015; and refused reconsideration of the revocation on 30 March 2015.