Ebury Partners UK Limited v M Acton Davis

An Employment Tribunal may reconsider a judgment only where this is necessary in the interests of justice. The jurisdiction must be exercised cautiously because finality in litigation is a central consideration. It does not ordinarily permit a party to advance, after a fair hearing, contractual-construction arguments which it could and should have made at that hearing; an alleged error of law should generally be pursued by appeal.

A reconsideration application must identify why, and which decision, reconsideration is sought. The tribunal cannot use it to conduct an uninvited general review or decide the case on a new basis which neither party argued.

The respondent employee was seconded to Canada under a side letter to his employment contract. His remuneration included commission. After the employer ceased commission payments, he resigned and brought claims for unfair and wrongful constructive dismissal.

The Employment Tribunal originally dismissed the claims. It held that any contractual commission entitlement under the side letter had ended after 12 months and that there had been no breach of the implied term of trust and confidence. On the employee’s application, the Tribunal reconsidered the judgment. It retained its contractual construction but upheld the claims on a new implied-term analysis.

The employer appealed and the employee cross-appealed on contractual construction. The central issue was whether the Tribunal could reconsider the original judgment and, if so, decide the claim on that new basis.

1. Appeal allowed and cross-appeal dismissed. The Employment Judge erred in reconsidering the original judgment. Under rules 70 and 71 of the Employment Tribunals Rules of Procedure, reconsideration was permissible only if necessary in the interests of justice.
2. Finality is a central element of that assessment. The employee had a fair opportunity at the final hearing to advance arguments on the construction of the side letter, including its apparent one-year limitation. The Tribunal was entitled to construe the contractual documents as presented even though neither party had expressly advanced the construction it adopted. No procedural mishap had deprived the employee of a fair opportunity to put his case.
3. The alleged error concerned contractual interpretation, traditionally a question of law. It was therefore a matter which could have been pursued by a timely appeal to the EAT, rather than by reconsideration. The Employment Judge did not assess the interests of justice or address the employer’s finality objection. He instead reconsidered the case because he reached a different conclusion on material already available at the original hearing. That was not a proper basis for reopening the judgment.
4. In any event, the reconsideration application concerned contractual interpretation. It did not justify a complete review of the case or a finding of breach of the implied term of trust and confidence, a basis not argued at the reconsideration hearing. Rule 71 requires an applicant to state why reconsideration is necessary; this necessarily identifies the decisions sought to be reconsidered. A tribunal cannot of its own motion reconsider a different aspect of its judgment without argument from the parties.
5. The EAT therefore did not determine the employee’s construction argument. The original Employment Tribunal judgment of 16 February 2021 was reinstated and the reconsideration judgments of 4 October 2021 were set aside.

• Employment Appeal Tribunal: allowed the employer’s appeal, dismissed the employee’s cross-appeal, set aside the reconsideration judgments and reinstated the original Employment Tribunal judgment.
• Employment Tribunal: original judgment promulgated on 16 February 2021 dismissed the unfair and wrongful constructive-dismissal claims. A reconsideration judgment issued on 4 October 2021 revoked that result and upheld the claims; it was set aside on appeal.