Dr Jayprakash Gosalakkal v University Hospitals of Leicester NHS Trust

The Employment Appeal Tribunal dismissed the appellant's appeals against refusals to reconsider a 2015 liability judgment and a 2015 costs decision. The tribunal correctly applied the Ladd v Marshall test for new evidence under rule 72(1) of the Employment Tribunal Rules 2013 and concluded that the Serious Untoward Incident (SUI) report was not new evidence capable of producing a different outcome. The judge’s brief introductory comment, when read in context, did not give rise to apparent bias under the fair‑minded observer test from Porter v Magill. The tribunal’s retrospective extension of time under rule 5 to permit the preliminary rule 72(1) sift was a lawful exercise of discretion in the unusual circumstances of the case.

Background and procedural posture:

• The appellant, a consultant paediatric neurologist, was dismissed for gross misconduct with effect from 1 November 2011. He brought claims including alleged detriment for protected disclosures (section 47B ERA) and unfair dismissal (sections 98 and 103A ERA). A tribunal dismissed those complaints in a reserved judgment dated 8 January 2015 and a costs order was made in principle on 9 June 2015 with a detailed assessment in July 2017.
• In July 2018 the appellant sought reconsideration relying on a 2012 Serious Untoward Incident Report (SUI report) which he said was newly discovered evidence. That application was dealt with under rule 71/72 ET Rules and, after two previous remittals to the employment judge, was refused under rule 72(1) as having no reasonable prospect of varying or revoking the 2015 judgment. The appellant appealed to the EAT.

Nature of the appeals and issues:

• The principal appeal challenged the rule 72(1) refusal on three grounds: (i) misapplication of the Ladd v Marshall test so that the SUI report could not be treated as new evidence affecting the reason for dismissal, (ii) apparent or actual bias arising from a judicial remark at the start of the preliminary hearing, and (iii) failure to consider the SUI report’s effect on the credibility of two witnesses.
• The respondent cross‑appealed the tribunal’s extension of time to present the reconsideration application. A separate appeal challenged refusal to reconsider the costs order, but that was contingent on success in the liability appeal.

Court’s reasoning and conclusions:

• On new evidence, the EAT accepted the tribunal’s factual findings that most alleged disclosures lacked good faith and that the SUI report did not show any direct link between the report’s contents and the appellant’s alleged protected disclosures or the reasons for his dismissal. The SUI report did not identify the appellant, did not contradict the tribunal’s factual findings, and could not have produced the necessary inference that the dismissal was motivated by the appellant’s disclosures. The Ladd v Marshall criteria were therefore not satisfied.
• On bias, the tribunal found it improbable the judge used the word "appeal" and accepted that any similar introductory comment must be read in the context of a preliminary rule 72(1) hearing and the judge’s explanation of procedure and possible settlement. A fair‑minded and informed observer would not conclude there was a real possibility of bias.
• On extension of time, although unusual, the retrospective extension pursuant to rule 5 was a permissible exercise of discretion in the circumstances and not an error of law.

Outcome: All grounds of the appellant's appeal, the respondent's cross‑appeal and the contingent costs appeal were dismissed.

The appeal is dismissed. The Employment Appeal Tribunal held that (1) the SUI report did not meet the Ladd v Marshall test and gave no reasonable prospect of varying or revoking the 8 January 2015 liability judgment; (2) the judge’s opening remark did not give rise to apparent bias when read in its procedural context; and (3) the tribunal did not err in extending time under rule 5. The cross‑appeal and the costs appeal likewise fail.

The matter originated in an Employment Tribunal liability judgment dated 8 January 2015 (claims under the Employment Rights Act 1996 and Equality Act 2010). A costs decision in principle was made on 9 June 2015 with detailed assessment on 13 July 2017. The appellant’s rule 71/72 reconsideration application (first made 14 July 2018) was remitted by the EAT (UKEAT/0223/18/DA) for re‑determination. A further appeal (EA-2020-000178-BA) resulted in the 7 February 2020 decision being set aside by consent and the matter remitted again (disposition recorded 24 January 2022). The present appeal concerns the rule 72(1) refusals dated after those remittals and the refusal by Employment Judge Heap to reconsider the costs order; the EAT dismissed the appeals on 12 May 2025 ([2025] EAT 64).