Jennifer Benjamin v The Markfield Project

An appeal from a reconsideration decision is not an appeal from the original judgment. An Employment Tribunal need not reconsider alleged errors which were neither raised in the reconsideration application nor arise from its reconsideration decision.

However, where an application clearly raises a potentially proper basis for reconsideration, including fresh evidence or a possible unfairness in presenting evidence, the tribunal must address it and give sufficient reasons. A failure to do so is an error of law. The reconsideration jurisdiction must be exercised in the interests of justice, consistently with the overriding objective and the importance of finality in litigation.

The claimant succeeded before the Employment Tribunal in claims of constructive unfair dismissal, race discrimination and failure to make reasonable adjustments. At the remedy hearing, the tribunal awarded injury to feelings compensation but made no award for financial loss after October 2016.

It refused the claimant’s subsequent application to reconsider the remedy judgment. The claimant appealed, alleging errors concerning mitigation and re-training, and a failure to deal with her application concerning injury to feelings. The respondent cross-appealed, relying on an alleged inconsistency concerning Employment and Support Allowance and contending that the injury to feelings award was perverse.

The central issue was the proper scope of an appeal from a reconsideration judgment.

1. Appeal allowed in part; cross-appeal dismissed. The claimant’s application for reconsideration was remitted to the Employment Tribunal, but only insofar as it concerned injury to feelings.

2. The claimant’s mitigation ground failed. It challenged the original remedy judgment rather than the reconsideration judgment, and the alleged errors concerning burden of proof and re-training had not been raised in the reconsideration application. An appeal from a refusal to reconsider is not a route by which to challenge the original judgment. The tribunal was entitled to treat the mitigation material as fresh evidence and to conclude that it would not have influenced its original conclusion.

3. In any event, the judge stated, obiter, that the respondent had produced evidence of suitable vacancies and that whether the claimant acted unreasonably by undertaking a course of study instead was a factual question for the tribunal. The original tribunal’s conclusion was not shown to be erroneous.

4. The injury to feelings ground succeeded. The claimant had expressly sought reconsideration on the basis that her disability had adversely affected her ability to give evidence, alternatively that she had not had a fair opportunity to present her case. Those matters potentially fell within the reconsideration jurisdiction. The tribunal’s reconsideration judgment did not address them. Its failure to do so was an error of law, requiring remittal for consideration of that discrete issue.

5. The cross-appeal did not arise from the reconsideration judgment. The respondent had not made a reconsideration application of its own. Further, the Employment and Support Allowance letter did not contradict the claimant’s evidence, and the perversity challenge to the injury to feelings award did not approach the requisite high threshold.

• Employment Appeal Tribunal: allowed the claimant’s appeal only on the tribunal’s failure to address reconsideration of injury to feelings; remitted that issue and dismissed the cross-appeal.
• Employment Tribunal: Employment Judge Bedeau refused, on 14 August 2019, the claimant’s application to reconsider the remedy judgment of 8 March 2019.
• Employment Tribunal: upheld claims of constructive unfair dismissal, race discrimination and failure to make reasonable adjustments after a merits hearing in October 2018; it dismissed a whistleblowing claim.