Clarke v Abertawe Bro Morgannwg University Health Board (Practice and Procedure)

Where an Employment Tribunal has granted a review application by express reference to an extended written application, its failure to consider that central document is a serious procedural irregularity. In those circumstances, an appellate tribunal need not be satisfied that the outcome would certainly have differed. It is sufficient that a different conclusion might have been reached.

The interests-of-justice ground for review under the 2004 Rules is distinct from the strict requirements governing new evidence. It may permit evidence to be received even where those requirements are not met. The proper remedy for the irregularity was a fresh review hearing before the original Tribunal.

The claimant, a nurse supplied through agencies, brought whistleblowing detriment claims after the respondent excluded her from work. The Employment Tribunal dismissed the substantive claim in 2012. It later dismissed her application for a review and ordered her to pay £4,000 towards the respondent's costs.

The review had been permitted to proceed by express reference to the claimant's extended application dated 1 October 2012. It was subsequently discovered that the Tribunal had not had that document before it at the review hearing or during deliberations. The claimant appealed on that free-standing procedural-irregularity ground, as well as on other grounds concerning the review and costs decisions.

The central issue was whether the omission required a fresh review hearing and, if so, the appropriate tribunal to conduct it.

1. Appeal allowed. The failure to consider the extended application was a serious procedural irregularity. The document had been prepared in response to the Employment Judge's request, and the Tribunal had granted permission for a review expressly by reference to it. Although the claimant had supplied many other documents and had not specifically identified the extended application in answer to questions, she ultimately relied on all documents she had supplied.

2. The omitted document did not merely duplicate the material before the Tribunal. It advanced central arguments about the erroneous date of the police visit, the NMC referral, the Nursing Review, and review in the interests of justice. The Tribunal had not considered whether the evidence should be admitted under the distinct interests-of-justice ground in Rule 34(3)(e) of the 2004 Rules.

3. Stanley Cole (Wainfleet) Ltd v Sheridan did not impose a universal rule that an appellant must establish that the irregularity would have changed the result. Its formulation reflected the particular unfairness in that case. Here, requiring certainty of a different result would wrongly require the EAT to determine the review itself. It was sufficient that the omitted document might have led to a different conclusion.

4. The review was remitted for a complete fresh hearing before the same Tribunal constitution. The original members were available and had conducted the substantive hearing; the error did not justify a newly constituted Tribunal. The earlier preliminary ruling had determined the limitation issue and had not left it open for reconsideration at the full hearing.

5. The consequential costs order was set aside. No determination was made on the claimant's separate substantive challenge to that order.

• Court of Appeal: In 2015, allowed the claimant's appeal against the Employment Appeal Tribunal's refusal of her Rule 3(10) applications for permission to appeal the review and costs decisions.
• Employment Appeal Tribunal: Allowed this appeal, set aside the review-related costs order, and remitted the review for a fresh hearing.
• Employment Tribunal: Dismissed the substantive whistleblowing detriment claim in 2012. It dismissed the review application by a decision sent on 4 June 2013 and made a costs order on 16 October 2013.