Islam v HSBC Bank Plc

An Employment Tribunal may refuse an out-of-time reconsideration application where the applicant provides no adequate evidence explaining the delay. It is not required to infer continuing ill-health from historic material or incomplete evidence.

Whether a hearing was fair is ultimately for an appellate court or tribunal to determine for itself. A tribunal must make adjustments tailored to a disabled litigant’s individual needs and keep them under review. It may, however, respect an informed litigant’s autonomy and expect that person to identify continuing difficulties or further adjustments required. A voluntary withdrawal, made after clear explanation and time for reflection, will not ordinarily be reopened where there was no indication at the hearing that unfairness caused it.

The Claimant, who had visual impairments and other health conditions, brought Employment Tribunal claims against the Respondent. Before the merits hearing, the Tribunal held a ground rules hearing and agreed adjustments, including accessible documents, electronic material, assistance from the Claimant’s brother and breaks.

During cross-examination the Claimant reported difficulty with his laptop. The Tribunal arranged for relevant passages to be read aloud. The following day, after discussing the matter with his family and receiving a further adjournment to reflect, he withdrew all his claims. The Tribunal dismissed them on withdrawal.

More than six months later, the Claimant applied for reconsideration. He relied on depression, computer difficulties and alleged unfair pressures. The Tribunal refused both an extension of time and reconsideration. The appeal concerned whether that refusal was a permissible exercise of discretion and whether the underlying hearing had been fair.

1. Appeal dismissed. The Employment Tribunal was entitled to refuse an extension of time for the reconsideration application. The Claimant had to provide evidence explaining the delay of over six months. Historic references to depression did not establish that his health prevented a timely application, and the Gateway Worker’s letter did not provide a sufficient explanation for the whole period of delay.

2. The Tribunal was also entitled to refuse reconsideration in the interests of justice. Reconsideration is not a means of reopening matters already determined or advancing matters omitted from earlier argument. Challenges of perversity or legal misdirection belong, in general, to an appeal.

3. The EAT nevertheless determined for itself whether the merits hearing had been fair, consistently with R (on the application of Osborn) v Parole Board [2014] AC 1115 and Galo v Bombardier Aerospace UK [2016] NICA 25. The Tribunal had held a ground rules hearing, checked the agreed adjustments at the outset, allowed the Claimant’s brother to assist with reading, provided regular breaks, and caused relevant passages to be read aloud when the laptop problem emerged.

4. Following the approach in Rackham v NHS Professionals Ltd UKEAT/0110/15, adjustments must be tailored to the individual and may require review during a hearing. But a tribunal should also respect a disabled litigant’s autonomy. On these facts, the Claimant was able to participate and raise procedural matters. He accepted the measures adopted, did not seek an adjournment or identify further necessary adjustments, and did not link his withdrawal to unfairness.

5. The withdrawal was an informed and voluntary decision. It was made after overnight reflection, discussion with family, explanation of its final consequences and a further opportunity to reconsider. The underlying hearing was fair, so there was no basis to reopen the dismissal on withdrawal.

• Employment Appeal Tribunal: dismissed the appeal and upheld the refusal to extend time and to reconsider the dismissal on withdrawal.
• Employment Tribunal (Birmingham): by judgment dated 12 February 2016, refused reconsideration of its earlier judgment, sent on 18 June 2015, dismissing the claims on withdrawal.