Leader v The Borough Council of Bolton (Practice and Procedure: Review)

An application to reconsider an Employment Tribunal decision must identify a reason why the decision may be revised or revoked. An Employment Judge is not required to conduct a general re-examination of the original materials to discover a possible error for an applicant who gives no such reason.

Fresh evidence which could and should have been obtained for the original hearing, and which does not show that the original decision was wrong, should not be admitted. The strict time limit for reconsideration should ordinarily be observed unless material supports an extension under Rule 5 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

The Claimant appealed against an Employment Tribunal decision, sent on 2 February 2015, refusing to reconsider its earlier disability determination of 9 July 2014. The earlier decision found that she was disabled from June 2013 by reason of leg oedema, but not otherwise.

Her application, sent by email on 1 August 2014, sought to vary the date from which disability-related allegations could be pursued and to include further health conditions. The Tribunal refused it as out of time and as having no reasonable prospect of revising or revoking the earlier decision. The appeal also relied on a later GP letter and procedural difficulties, including the omission of information about requesting written reasons.

The central issue was whether the Employment Judge erred in refusing reconsideration, including by declining to extend time and by not re-examining the original disability decision.

1. Appeal dismissed. The application for reconsideration gave no ground on which a reasonable Employment Judge could conclude that the original decision might be revoked or revised. It expressed dissatisfaction with the result, but did not identify an error of law, fact, or approach in the original assessment.

2. An Employment Judge receiving an unreasoned application for reconsideration is not obliged to sift again through all the primary material to find a possible defect in the original decision. The original decision had considered the medical evidence and reached conclusions open to the Tribunal.

3. The GP letter dated 18 August 2014 was new evidence. It could and should have been obtained for the July 2014 hearing. It did not justify a conclusion that the Claimant had been disabled by leg oedema before June 2013, and its inconsistent dates further weakened its value. The criteria in Ladd v Marshall were not met, and this was not an exceptional case in which they could properly be relaxed.

4. The time issue did not require final determination. If the application had stood alone, refusal to extend time would not have been faulted. The strict reconsideration time limit should ordinarily be observed unless material justifies an extension under Rule 5 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Procedural mishaps might have required further investigation, including evidence from the Claimant, before appellate intervention could be justified; that inquiry was academic because the merits independently required dismissal.

• Employment Appeal Tribunal: dismissed the Claimant's appeal from the Employment Tribunal's refusal, sent on 2 February 2015, to reconsider its earlier decision.
• Employment Tribunal, Manchester: on 9 July 2014 determined that the Claimant was disabled from June 2013 by reason of leg oedema only; on 2 February 2015 refused reconsideration of that decision.