Lynn Phipps v Priory Education Services Ltd

Reconsideration under Rule 70 is available only where it is necessary in the interests of justice. The tribunal must exercise that broad discretion in a principled and fact-sensitive way. It must balance the applicant’s position with the opposing party’s interests and the public interest in finality of litigation.

A representative’s failures will not generally justify reconsideration, but that guidance is not an inflexible rule. Serious representative misconduct is a material circumstance, yet it does not compel reinstatement. An appellate court must not reassess the interests of justice afresh unless the tribunal made an error of law, ignored relevant considerations, or reached an extreme unreasonable assessment.

The claimant brought claims of unfair dismissal and age and disability discrimination. Her representative obtained a late adjournment of a four-day hearing but repeatedly failed to comply with orders requiring supporting medical evidence and failed to respond to strike-out warnings.

The Employment Tribunal struck out the claim for non-compliance with orders and failure actively to pursue it. On reconsideration, it accepted that the claimant had been deceived by her representative and was not personally at fault. It nevertheless left the strike-out in force, made no costs order against her, and made a wasted costs order against her representative.

The claimant appealed, contending that the Tribunal had treated representative default as a rigid bar to reconsideration. The issue was whether the Tribunal had erred in deciding that reconsideration was not necessary in the interests of justice.

1. Appeal dismissed. The Employment Tribunal made no error of law in refusing to revoke the strike-out after reconsideration.

2. Under Rule 70 of the ET Rules, reconsideration is permissible only where it is necessary in the interests of justice. The discretion is broad but must be exercised by reference to recognised principles. Justice includes the interests of the applicant, the opposing party and the public interest in finality of litigation.

3. The Tribunal correctly treated Lindsay as guidance that failures by a party’s representative will not generally

4. Newcastle upon Tyne City Council v Marsden did not establish that representative misconduct necessarily required reconsideration. It upheld a first-instance discretionary decision on its particular facts and warned against converting broad statutory discretion into rigid formulae. The assessment of the interests of justice is pre-eminently for the Tribunal. An appellate court cannot substitute its own assessment absent an error of law, failure to consider relevant matters, or an extreme unreasonable conclusion.

5. The Tribunal was entitled to give substantial weight to the respondent’s wasted preparation for two ineffective full hearings, the misuse of Tribunal resources, the absence of meaningful progress in preparing the claim, and finality. Although the claimant was not personally to blame and had been deceived, she had a potential remedy against her representative. The wasted costs order and factual findings against that representative strengthened that alternative remedy. It was therefore open to the Tribunal to leave the strike-out in place.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s reconsideration decision, which maintained the strike-out while varying a misstated date, was upheld.

• Employment Tribunal (Midlands West): The claim was struck out on 4 January 2019 for non-compliance with orders and failure actively to pursue it. Following reconsideration proceedings on 3 July 2019, the Tribunal maintained the substantive strike-out, declined to award costs against the claimant, and made a wasted costs order against her representative.