Dr Jayprakash Gosalakkal v University Hospitals of Leicester NHS Trust

A reconsideration application based on fresh evidence may be refused at the preliminary stage where there is no reasonable prospect that the original decision will be varied or revoked. Applying Ladd v Marshall, the evidence must be capable of having an important influence on the result. Speculative inferences, without a coherent evidential link to the original findings or the reason for dismissal, do not meet that standard.

Apparent bias is assessed through the fair-minded and informed observer, who considers the full procedural context. An introductory comment explaining the limited purpose of a preliminary hearing does not demonstrate a real possibility of bias.

The appellant, a consultant paediatric neurologist, was dismissed for gross misconduct in November 2011. In January 2015, an Employment Tribunal dismissed his complaints of protected-disclosure detriment and ordinary and automatic unfair dismissal under the Employment Rights Act 1996.

In 2018, he sought reconsideration of the liability judgment on the basis of a Serious Untoward Incident report concerning the later death of a child. Following two earlier remittals, Employment Judge Ahmed refused the application under rule 72(1) in January 2023. The judge found no reasonable prospect that the report would alter the original judgment, although he extended time for the application.

The appellant appealed that refusal and separately appealed the refusal to reconsider a costs order. The respondent cross-appealed the extension of time. The central issues were whether the report satisfied the fresh-evidence test and whether an alleged introductory judicial comment created apparent bias.

1. The liability appeal, the costs appeal and the respondent’s cross-appeal were dismissed.

2. The Employment Judge correctly refused the reconsideration application under rule 72(1) of the Employment Tribunal Rules 2013. The Serious Untoward Incident report provided no reasonable prospect of varying or revoking the 2015 liability judgment. It did not bear on the findings that the alleged disclosures were either not made, were not disclosures of information, or lacked good faith. Nor did it provide evidence of a causal connection between any alleged disclosure and dismissal.

3. The report contained no direct evidence about the reason for dismissal. The appellant was not mentioned in it. Its discussion of case-specific and systemic matters concerning a child’s death did not support an inference that the unanimous four-member disciplinary panel dismissed him to silence him or to make him a scapegoat. The appellant also identified no way in which the report showed that the relevant witnesses had lied, or why any alleged untruth would affect the original findings.

4. The alleged comment at the preliminary hearing did not establish apparent bias. Applying the test in Porter v Magill, the informed and fair-minded observer would understand that the hearing was only the rule 72(1) sift. Even if the application passed that stage, a later merits hearing before the full tribunal would be required. In that context, and with the judge having raised possible settlement, the comment was an explanation of procedure rather than a pre-judgment of the application.

5. Although the extension of time by more than three years was unusual, rule 5 conferred a broad discretion. The Employment Judge was entitled to conclude that fairness required preliminary consideration of the merits. There was no error of law in that exercise of discretion.

• Employment Appeal Tribunal: dismissed the appellant’s liability and costs appeals, and dismissed the respondent’s cross-appeal, in [2025] EAT 64.
• Employment Tribunal: Employment Judge Ahmed refused the remitted liability reconsideration application under rule 72(1) in January 2023, finding no reasonable prospect that the 2015 liability judgment would be varied or revoked.
• Employment Appeal Tribunal: a prior appeal resulted in the February 2020 reconsideration decision being set aside by consent and the application being remitted to Employment Judge Ahmed.
• Employment Appeal Tribunal: a prior appeal resulted in the earlier refusal of the reconsideration application being remitted for a fresh rule 72(1) decision: UKEAT/0223/18/DA.
• Employment Tribunal: dismissed the protected-disclosure and unfair-dismissal complaints in a liability judgment dated 8 January 2015, and later made a costs order in principle.