Treska v The Master and Fellows of University & Anor

A valid first early-conciliation notification under section 18A of the Employment Tribunals Act 1996 engages the statutory extension of time. A later voluntary notification concerning the same matter cannot create a further extension.

Reasons refusing reconsideration may properly be short where the tribunal has already given full reasons on the same issue and the new material cannot affect the result. A costs award is unsafe if the tribunal treats an unnotified allegation of improper motive or bad faith as a significant factor. The affected party must have notice and a fair opportunity to answer that allegation.

The Claimant had brought claims of unfair dismissal, protected-disclosure detriment, and race and disability discrimination against the Respondents. The Employment Tribunal struck out the claims as out of time following a preliminary hearing. It later refused reconsideration and ordered the Claimant to pay £11,196 towards the Respondents’ costs.

The Claimant appealed the refusal of reconsideration, relying on a later early-conciliation notification and on reasonable practicability. He also challenged the costs order, contending that the Tribunal had found bad faith without giving him notice or an opportunity to meet that case.

1. The appeal was allowed in part. The appeal against the refusal to reconsider the time-bar decision was dismissed. The appeal against the costs order was allowed, and costs were remitted to a differently constituted Employment Tribunal.

2. The first early-conciliation notification validly identified University College for the purposes of section 18A of the Employment Tribunals Act 1996. The Tribunal was entitled to disregard the minor difference from the Respondents’ full legal title, consistently with Mist [2016] ICR 543. The extended limitation period under section 207B of the Employment Rights Act 1996 therefore expired on 29 December 2014.

3. The later early-conciliation notification concerned the same matter. It was voluntary and could not alter Day A or Day B, or generate a further extension of time. The reasoning in Commissioners for HMRC v Serra Garau UKEAT/0348/16/LA applied. The later notification was consequently incapable of supplying a basis for reconsideration.

4. The reconsideration application raised nothing new on reasonable practicability. In light of the earlier fully reasoned decision, the Tribunal’s short reasons adequately identified the applicable test and showed that it had considered the grounds. Rule 62 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 permits proportionately brief reasons for a decision other than a judgment.

5. The Tribunal correctly treated costs as a two-stage exercise: whether its jurisdiction was engaged and, if so, whether an award was appropriate. However, its finding that the discrimination claims were a “device”, pursued without genuine belief or grievance, was a finding of improper motive and bad faith. The Respondents had not advanced a case of bad faith. Although the Claimant could explain the background, he had not been given notice of that allegation or an opportunity to give evidence to answer it. The Tribunal therefore took an irrelevant factor into account.

6. That finding was significant to the discretionary costs decision and rendered the order unsafe. Whether bad faith could properly be established, or whether other factors justified costs, was for the Tribunal on remission. Applying the Sinclair Roche factors, remission to a different Tribunal was appropriate because the parties, particularly the Claimant, could not reasonably have confidence that the same Tribunal would approach the bad-faith issue with an open mind.

• Employment Appeal Tribunal: Allowed the appeal only in respect of costs. The refusal of reconsideration was upheld and the costs issue was remitted to a different Employment Tribunal.
• Employment Tribunal, Reading: At a preliminary hearing on 2–3 June 2015, struck out the claims as time barred. On 12 February 2016, refused reconsideration and awarded the Respondents £11,196 costs.