TCO In-Well Technologies UK Ltd v Stuart

A tribunal may not, as an alternative to deciding a party's application under Rule 71, invoke Rule 73 to reconsider a matter already the subject of a contested Rule 71 application.

Where an out‑of‑time Rule 71 application exists the tribunal must first decide the time‑extension issue (including under Rule 5) before addressing the substantive reconsideration matter.

When the tribunal reconsiders on its own initiative it must follow the procedure in Rule 72(2) and give balanced reasons that address opposing submissions.

The claimant obtained an unfair dismissal award from an Employment Tribunal. The claimant's representatives sought reconsideration that the compensatory award be grossed up for tax. That request was made after the 14‑day limit and was opposed by the respondent on lateness and on substance. The tribunal purported to "reconsider on its own initiative" under Rule 73 and grossed up the award. The respondent appealed to the Employment Appeal Tribunal.

The central question was whether a tribunal can use Rule 73 to reconsider an issue which is already the subject of an opposed, albeit late, Rule 71 application without first deciding the Rule 71/time extension issue.

1. The appeal is allowed. The July 2016 reconsideration was procedurally incompetent and substantively unfair. The matter is remitted to a freshly constituted Employment Tribunal for determination of the opposed Rule 71 application (including any application under Rule 5) as a first step. (Disposal: paras [30]–[33])
2. Rules 70–73 set two alternative routes for reconsideration: on application (Rule 71) and on the tribunal's own initiative (Rule 70 read with Rule 73). Those routes are alternative and not to be hybridised. A pending Rule 71 application excludes invoking Rule 73 as an alternative for the same subject matter. (Legal construction: paras [23]–[25], [28]–[29])
3. Rule 71(1) requires the Employment Judge to consider any application made by a party. Where an application is opposed as out of time the tribunal must first decide whether to extend time under Rule 5 before addressing the substantive merits. The tribunal must give reasons for any extension or refusal of extension. (Rules interaction and procedure: paras [24], [26]–[27])
4. When the tribunal reconsiders on its own initiative under Rule 73 it must follow Rule 72(2) "as if an application had been made and not refused". That means informing parties of the reasons and giving a reasonable opportunity to make further representations. The tribunal must address opposing submissions and give balanced reasons. Failure to do so risks breach of natural justice. (Procedural requirements: paras [23], [24], [25])
5. The Employment Appeal Tribunal accepted that there may be circumstances where the tribunal can reconsider a separate, new issue of its own initiative notwithstanding a different pending Rule 71 application. That point is reserved and does not affect this case where the subject matter was identical. (Limitation: para [29])

• Employment Appeal Tribunal: appeal allowed; matter remitted to a freshly constituted Employment Tribunal for determination of the opposed Rule 71 application ([2017] UKEAT 0016_16_1904).
• Employment Tribunal: original judgment of 21/22 April 2016 (found unfair dismissal and awarded £106,520.98). The Tribunal issued a purported reconsideration dated 22 July 2016 that grossed up the compensatory award but did not record an amended order.