Banerjee v Royal Bank of Canada

The Employment Appeal Tribunal held that a tribunal may reconsider a judgment on its own initiative under Rules 70–73 of the Employment Tribunals Rules of Procedure 2013 even where a party has urged the tribunal to do so. A party's brief submission urging the tribunal to exercise that power does not thereby become an application by that party. The principle of finality is important but is not absolute; reconsideration is permissible to correct a genuine common mistake or where leaving the error would cause injustice.

The claimant appealed a tribunal order fixing a 25% ACAS uplift. The tribunal had fixed the uplift at the liability hearing without evidence of quantum. The respondent had raised the correct law in written submissions but did not apply for reconsideration within the 14-day limit. At the remedies hearing counsel for the respondent suggested the tribunal could act on its own initiative. The tribunal then proposed a reconsideration under Rule 73. The respondent withdrew its appeal and the claimant appealed to the EAT. The central question was whether a party may invite a tribunal to exercise its Rule 73 power and whether that invitation converts the tribunal's action into a party application for reconsideration. The EAT heard whether principles of finality or procedural fairness barred the tribunal's action.

1. Disposition: Appeal refused; the Employment Appeal Tribunal dismissed the appeal and remitted the matter to the Employment Tribunal to proceed with reconsideration under Rule 73 (see paras [49]; [47]).
2. Tribunal power to reconsider on its own initiative: The Rules permit a tribunal to reconsider "on its own initiative" under Rule 70, and Rule 73 sets the procedural steps to be followed when the tribunal proposes to do so (paras [20]–[23]). The tribunal may investigate the law and then propose a reconsideration even if the suggestion was prompted by a party (paras [32]–[36]).
3. Effect of a party's submission: A party may remind or invite the tribunal to use its Rule 73 power. A short or unelaborated submission urging reconsideration does not amount to an application by that party under Rules 70–72 (paras [25]–[27]; [36]–[37]). The court treated the respondent's advocacy as an invitation and not as an out-of-time application (paras [26]–[27]; [36]).
4. Finality and common mistake: Finality is an important but qualified principle. A decision subject to reconsideration or appeal is not finally immune from correction (paras [41]–[43]). Where the parties and tribunal have jointly misunderstood the law so as to produce a "common mistake" (as with the ACAS uplift fixed without reference to quantum and inconsistent with [2011] ICR 1290 (Wardle)), the tribunal was entitled to invoke Rule 73 to prevent injustice (paras [42]–[44]).
5. Procedure and fairness: Rule 73 places discretion in the tribunal to propose reconsideration and to follow Rule 72(2) on hearings or written representations. Although it would often be desirable to invite submissions before deciding to propose reconsideration, absence of detailed submissions at the remedies hearing did not, on these facts, make the tribunal's course unlawful or unfair (paras [21]–[22]; [46]–[47]).
6. Guidance on ACAS uplift: Tribunals should follow the two-stage approach described in [2011] ICR 1290 when applying s.207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992. That approach requires assessment of the multiplicand (monetary consequences) before fixing a percentage uplift (paras [3]–[6]).
7. Order: Appeal refused; matter remitted to the Employment Tribunal to proceed with reconsideration in accordance with Rule 72(2) and Rule 73 (paras [47]–[49]).

• Employment Appeal Tribunal: Appeal heard before The Honourable Lord Summers (sitting alone). Appeal refused and remitted to the Employment Tribunal for reconsideration under Rules 72(2) and 73 of the Employment Tribunals Rules of Procedure 2013 (paras [47]–[49]).
• Employment Tribunal: Liability judgement fixing a 25% ACAS uplift; Remedies judgement proposing reconsideration on tribunal's own initiative under Rule 73. Appeal to EAT followed these decisions.