D McGonagle v Jaguar Land Rover Limited

Where an Employment Tribunal decides a direct age-discrimination justification case on a basis that was not apparent from the pleaded case or list of issues, procedural fairness ordinarily requires that the affected party have a proper opportunity to serve evidence and make submissions on that basis. A reconsideration application is not merely an attempt to reargue the case where it identifies that the tribunal relied on a previously unraised issue.

On an appeal confined to refusal of reconsideration, the Employment Appeal Tribunal should not determine the underlying merits or make factual findings. The appropriate course may be to direct reconsideration under the applicable procedural rules.

The claimant, aged 54, accepted voluntary redundancy from the respondent. He was denied access to its Retired Managers Loan Agreement Plan because he had not reached 55. The Employment Tribunal found direct age discrimination but dismissed the claim, holding that the age criterion was a proportionate means of achieving a legitimate aim.

The claimant did not appeal that merits decision. He instead sought reconsideration, contending that the tribunal had relied on an unpleaded rationale concerning parity between defined benefit and defined contribution pension-scheme members. The Employment Judge refused reconsideration. The claimant appealed that refusal to the Employment Appeal Tribunal.

The central issue was whether the reconsideration application simply reargued the original claim or disclosed a fairness error requiring reconsideration.

1. Appeal allowed. The Employment Judge erred in refusing reconsideration. The Employment Appeal Tribunal substituted an order that the original decision be reconsidered under rule 72(2).

2. The original Tribunal had rejected the pleaded aims concerning cost reduction and a comfortable exit. It upheld the remaining aim by relying on parity of treatment between members of the defined benefit and defined contribution pension schemes. That parity issue was neither apparent from the pleadings and list of issues nor shown to have been supported by evidence relevant to voluntary redundancy.

3. The Employment Judge was wrong to characterise the claimant's application as rearguing the case. The application identified a material point: the claimant had not had a fair opportunity to adduce evidence or make submissions on the parity rationale on which the Tribunal determined justification.

4. The Employment Appeal Tribunal did not decide whether the original findings were perverse or determine the merits of the age-discrimination claim. Because the appeal concerned only the refusal of reconsideration, and the underlying evidence was not before it, the proper and only available course was reconsideration. If reconsideration proceeds without a hearing, the parties must have a reasonable opportunity to make further representations.

• Employment Appeal Tribunal: Allowed the appeal against refusal of reconsideration and directed reconsideration of the original Tribunal decision under rule 72(2).
• Employment Tribunal: Dismissed the direct age-discrimination claim, finding the age criterion objectively justified. The Employment Judge later refused the claimant's application for reconsideration.