Gosalakkal v University Hospitals Of Leicester NHS Trust (PRACTICE AND PROCEDURE - Reconsideration)

An Employment Judge considering an out-of-time reconsideration application must address both whether time should be extended and whether the application has a reasonable prospect of the original decision being varied or revoked. A stated late discovery of a report is capable of providing a reason for lateness. Findings and expert conclusions in the respondent's own report are capable of constituting fresh evidence; they are not merely fresh allegations.

The Employment Appeal Tribunal should ordinarily remit where inadequate reasons disclose an error of law. It should not determine the reconsideration merits itself unless the result is legally mandated or the parties request that course and it can fairly be taken.

The Claimant's whistleblowing, unfair dismissal and wrongful dismissal claims had been dismissed by an Employment Tribunal. A previous reconsideration application was also rejected.

In July 2018 the Claimant sought reconsideration after learning of the Respondent's serious incident report concerning failures in its paediatric services. He contended that the report should have been disclosed and amounted to fresh evidence. The Employment Judge refused the application on paper as out of time and said that it contained no fresh information.

The appeal concerned whether those reasons adequately addressed an out-of-time application for reconsideration under the Employment Tribunal Rules of Procedure 2013.

1. Appeal allowed. The Employment Judge's refusal could not stand because the reasons did not address the application that had been made.

2. The Judge was wrong to state that no valid reason had been given for lateness. The Claimant had expressly said that he learned of the report only in April or May 2018. That assertion was capable of explaining why an application based on it had not been made within the ordinary 14-day period.

3. The Judge was also wrong to characterise the material as fresh allegations only. The application relied on the Respondent's own report and its findings about failures at the relevant time. Such material may contain factual findings and expert conclusions. Both are capable of being evidence for a reconsideration application and for applying the Ladd v Marshall criteria.

4. Under rules 70–73 of the Employment Tribunal Rules of Procedure 2013, the Tribunal had to consider the extension of time and whether there was any reasonable prospect that the original decision would be varied or revoked. If there were no such reasonable prospects, rule 72(1) required refusal. Otherwise, directions for reconsideration were required. The two issues could be considered together at a hearing where appropriate.

5. The Employment Appeal Tribunal would not decide whether the report satisfied the fresh-evidence criteria. The Tribunal was better placed to assess the Claimant's asserted late discovery and the report's potential influence on the original decision. It was impossible to rule out such influence at appellate level.

6. The matter was remitted to the same Employment Judge, if available, to determine afresh. The Respondent was directed to answer the application and append the report; the Claimant could reply. At the preliminary stage, the Judge was to keep the rule 72(1) reasonable-prospects threshold in mind.

• Employment Appeal Tribunal: allowed the appeal against the Employment Judge's letter of 31 July 2018 and remitted the reconsideration application for fresh determination.
• Employment Tribunal: dismissed the underlying claims by judgment dated 8 January 2015. A subsequent reconsideration application was rejected. The later out-of-time reconsideration application was refused on paper.