Ministry of Justice v J McGrandle

An appellate court may allow an appeal where a reconsideration decision was materially founded on a factual error induced by a party or that party’s representatives. The error need not be deliberate. Where the error was central to the tribunal’s assessment of the interests of justice, the decision should be set aside.

A party will not ordinarily be permitted to advance in the Employment Appeal Tribunal a new challenge to an unambiguous withdrawal which was not raised below. A reconsideration application remitted after such an error should be determined de novo, on the evidence and arguments then properly advanced.

The claimant, a retired part-time tribunal chairman, brought pension discrimination proceedings against the Ministry of Justice as part of the wider O’Brien/Miller litigation. She withdrew her claim in February 2016 and the Employment Tribunal dismissed it following that withdrawal.

In March 2020 she applied to revoke the dismissal by reconsideration. Employment Judge Williams granted the application on the papers, relying in part on the understanding that her husband had died shortly before the claim was dismissed and that she had then faced personal and financial difficulty.

The Ministry appealed. The claimant cross-appealed, contending that her withdrawal had been ambiguous. Shortly before the appeal hearing, her solicitors disclosed that her husband had died in 2010, before the claim had been issued. The central issue was whether that factual error required the reconsideration decision to be set aside.

1. Appeal allowed; cross-appeal dismissed; reconsideration remitted. The Employment Judge’s decision to revoke the 2016 dismissal was set aside because it rested materially on a false factual premise. The application had been advanced, and the Judge had decided it, on the basis that the claimant’s husband died shortly before the dismissal. In fact, he died in 2010, before she commenced the claim and five or six years before its withdrawal.

2. That error was material to the Judge’s conclusion that the claimant had been in personal and financial difficulty when withdrawing the claim. It was enough that the erroneous material had been put before the tribunal by the claimant or her solicitors; it did not matter which. The EAT held that taking account of a material factual matter, which was wrong and had been induced by a party, was a proper basis for allowing the appeal.

3. The claimant could not raise, for the first time on appeal, the contention that her withdrawal was ambiguous. That issue had not been advanced before the Employment Judge. In any event, the correspondence gave no realistic basis for ambiguity and the Judge had found the withdrawal unambiguous. The cross-appeal would therefore fail in any event.

4. The remaining grounds of appeal did not require determination, although some were arguable. The reconsideration application was remitted to Employment Judge Williams for a complete de novo determination, taking account of such evidence and arguments as the parties might properly advance. The EAT also observed, without deciding the point, that revocation might leave the original claim at an end under the tribunal rules, so that a new claim might be needed.

• Employment Appeal Tribunal: Allowed the Ministry’s appeal, dismissed the claimant’s cross-appeal, set aside the reconsideration judgment, and remitted the reconsideration application for a de novo hearing.
• Employment Tribunal: Employment Judge Williams, by a judgment sent on 3 June 2021, revoked the dismissal judgment issued after the claimant’s withdrawal.
• Employment Tribunal: Employment Judge McMillan, by a judgment sent on 16 March 2016, dismissed the proceedings following withdrawal of the claim.