M Jarosinski v Nestle UK Ltd

Rule 72 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 requires a two-stage reconsideration process. An Employment Judge must first decide whether the application has no reasonable prospect of varying or revoking the original decision. Only if it is not refused may the application proceed to reconsideration under Rule 72(2).

A reconsideration of a decision made by a full tribunal must, where practicable, be made by that tribunal. A Judge sitting alone cannot substitute their view for that of the panel. The error is material because panel members may reach a different conclusion. The interests of justice may permit a decision without a hearing, but do not permit the mandatory first stage or the panel safeguard to be bypassed.

The Employment Tribunal dismissed the claimant’s discrimination, harassment, victimisation and wrongful-dismissal claims. It upheld his unfair-dismissal claim but made no award because of 100% contributory conduct and a 100% chance of dismissal following a fair procedure.

The claimant sought reconsideration of that full tribunal decision. Employment Judge Ayre cancelled a listed hearing, considered the application on written representations under Rule 72(2), and refused it. The claimant appealed, contending that a Judge sitting alone could not make that second-stage decision and challenging the relevance attached to the age of the allegations. The respondent cross-appealed, contending that the mandatory Rule 72(1) sift had been omitted.

The central issue was whether the reconsideration procedure and tribunal constitution required the decision to be set aside and remitted.

1. Appeal allowed in part and cross-appeal allowed. The reconsideration decision was set aside and the application was remitted for fresh consideration under Rule 72(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

2. The Employment Judge had made a second-stage decision under Rule 72(2). She had expressly said that she would do so, and her reasons addressed the full merits rather than whether the application had no reasonable prospect of success under Rule 72(1).

3. That course involved two errors. First, it omitted the mandatory sift under Rule 72(1), depriving the respondent of the possibility that the application would be refused at that stage. Secondly, Rule 72(3) required reconsideration of the full tribunal’s original decision to be undertaken by that tribunal, where practicable. No basis for a Judge sitting alone to make the Rule 72(2) decision had been established.

4. The errors were material. The issue was not whether the Employment Judge’s conclusion was open to her personally. The claimant was entitled to the safeguard of consideration by the full tribunal which had heard the evidence and made the collective decision. Panel members could not be treated as merely endorsing the Judge’s view. The absence of a hearing was not itself erroneous, but it did not cure the defects in stage and constitution.

5. The separate challenge concerning the age of allegations dating from 2012 failed. In context, the Judge had permissibly treated the length, complexity and detailed prior consideration of the case as relevant to the public interest in finality of litigation. The weight of that factor was for the tribunal.

6. Applying Sinclair Roche and Temperley v Heard [2004] IRLR 763, remittal was to a different Employment Judge. The decisive consideration was the risk of a second bite: having given a clear Rule 72(2) decision, Employment Judge Ayre would be placed in an impossible position if required to conduct the earlier Rule 72(1) sift. The newly nominated Judge was not required to proceed to Rule 72(2); if that stage arose, it could be appropriate to sit with the original panel members.

• Employment Appeal Tribunal: Allowed the claimant’s procedural appeal, dismissed his separate challenge concerning finality of litigation, allowed the respondent’s cross-appeal, set aside the reconsideration decision and remitted the application.
• Employment Tribunal: In a judgment sent on 5 January 2022, dismissed the discrimination-related and wrongful-dismissal claims, upheld unfair dismissal, but made no basic or compensatory award. Employment Judge Ayre refused reconsideration on 13 May 2022.