Modha v Babcocks Airport Ltd

An Employment Tribunal must give reasons for a decision on a reconsideration application that are proportionate but sufficient to disclose its reasoning. A bare assertion that an application has no reasonable prospects of success is a conclusion, not adequate reasons.

However, an error of law does not require remittal where it could not have affected the result. The Employment Appeal Tribunal may uphold the outcome where it follows inevitably from the Tribunal’s findings and undisputed facts, without making its own factual assessment.

The claimant’s claims for unfair dismissal, race discrimination and disability discrimination had been dismissed following a seven-day Employment Tribunal hearing. He later applied for reconsideration and sought an extension of time.

The Employment Tribunal refused reconsideration, stating that the application was late and had no reasonable prospects of success. After an earlier refusal of permission in the Employment Appeal Tribunal, the Court of Appeal remitted two arguable grounds for a full hearing: whether the extension application had been overlooked and whether adequate reasons had been given.

The central issue was whether either error required the reconsideration application to be remitted.

1. Appeal allowed, but no remittal. The Employment Tribunal made two errors of law, but neither was material. Its refusal of reconsideration therefore stood in practical effect.

2. The Tribunal appears to have overlooked the claimant’s application for an extension of time. That was an error. It could not affect the result because the claimant submitted his reconsideration application only three days later and the Tribunal considered that application on its merits.

3. A refusal of reconsideration was a judgment for the relevant procedural rules and attracted the duty to give reasons. Although reasons for a reconsideration decision may be adapted to reflect its lesser significance and the existence of full reasons for the substantive judgment, they must still reveal the reasoning. The Tribunal’s statement that the application had no reasonable prospects of success gave only a conclusion and was inadequate.

4. Applying Jafri v Lincoln College, an appeal need not be remitted where the identified legal error could not have affected the result. The Employment Appeal Tribunal must not decide the merits or make its own factual assessment; the lawful result must instead follow from the Tribunal’s findings and undisputed or indisputable facts.

5. Here, the reconsideration application largely commented on only some primary factual findings. It did not undermine the Tribunal’s dispositive analysis of the discrimination, victimisation, disability, redundancy or fairness issues. The additional documents were either available at the original hearing or immaterial. The only possible conclusion was that reconsideration was not required in the interests of justice. No remittal was ordered.

• Court of Appeal: Lewison LJ remitted the matter to the Employment Appeal Tribunal for a full hearing limited to the extension-of-time issue and the adequacy of reasons.
• Employment Appeal Tribunal: The earlier Rule 3(10) process had concluded that no arguable error of law arose.
• Employment Tribunal: Dismissed the claimant’s substantive claims, then refused his application for reconsideration.