Leicester City Council v R Patel

A decision on reconsideration under rule 13 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 is a case management order, not a judgment. The Employment Tribunal may therefore vary, suspend or set it aside under rule 29 where this is necessary in the interests of justice.

That power is constrained by finality and the integrity of judicial decisions. It is not available merely because the tribunal has changed its mind. It may, however, be exercised where the earlier order contains a material omission or mistreatment, including a failure to determine the reconsideration application on the ground advanced.

A misdescription of a respondent may be a minor error under rule 12(2A). The tribunal must then assess whether rejection would be contrary to the interests of justice, including comparative prejudice.

The claimant, following more than 30 years’ employment, presented claims for unfair dismissal, discrimination and victimisation. Her ET1 named “Leicestershire City Council”, although the early-conciliation certificate, address and particulars identified Leicester City Council.

The Employment Tribunal rejected the claim under rule 12. On the claimant’s timely rule 13 application, which asserted that the rejection itself was wrong, it instead treated the matter as rectification and accepted the claim only from the date of that application. That created a limitation issue.

After a further application, the Employment Tribunal set aside its earlier reconsideration decision and accepted the claim from its original presentation date. The respondent appealed, challenging the tribunal’s power to revisit the earlier decision and its assessment of minor error and the interests of justice.

1. Appeal dismissed. The Employment Tribunal was entitled to revisit its earlier reconsideration decision and to accept the claim as presented on 1 May 2020.

2. A rule 13 decision cannot be a judgment because rule 1(3)(b) expressly excludes it. Rule 1(3) provides only two categories of tribunal decision. A rule 13 decision is therefore a case management order. Once it accepts a claim, it is a decision made in relation to the conduct of proceedings. It may consequently be varied, suspended or set aside under rule 29 where necessary in the interests of justice.

3. The rule 29 assessment must respect certainty and finality in litigation and the integrity of judicial orders. A tribunal cannot revisit an earlier order simply because it has changed its mind or recognised a flaw in its reasoning. The power may nevertheless be exercised where there has been a material change of circumstances, a material omission or mistreatment, or another substantive reason requiring interference.

4. The first reconsideration contained such a material omission. The claimant had applied under rule 13(1)(a), contending that the original rejection was wrong because the incorrect name was a minor error and rejection was unjust. The tribunal instead decided a rectification question under rule 13(1)(b), although there had been no rectification. It had therefore failed to determine the application made.

5. The later decision necessarily set aside the first reconsideration decision. The claimant’s delay in identifying the error did not prevent that course. The respondent suffered no prejudice, whereas rejection risked excluding the claimant from an unfair-dismissal claim.

6. The tribunal was entitled to find that the incorrect respondent name was a minor error within rule 12(2A). The correct address, accompanying particulars and early-conciliation material identified the intended respondent. It was also entitled to find that rejection was not in the interests of justice. The claim was properly accepted from 1 May 2020.

• Employment Appeal Tribunal: Appeal dismissed. The tribunal’s reconsideration judgment accepting the claim from 1 May 2020 was upheld.
• Employment Tribunal, Leicester: The tribunal initially rejected the claim under rule 12, then accepted it on reconsideration from 21 May 2020. On a further application, it set aside that approach and accepted the claim from its original presentation date.