A v B, the Organisation & Ors

Under Rule 33, an EAT review is exceptional and cannot be used to re-argue a case or correct an error of law properly raised on appeal. However, the interests of justice may require review where the EAT has failed to determine distinct, substantive arguments advanced before it.

When considering whether to vary or revoke a permanent restricted reporting order, the tribunal must address each asserted material change in circumstances. It must not confine its consideration to a reduction in safety risk where heightened need for freedom of expression and increased public interest are separately advanced. Particular vigilance is required because an order of unlimited duration may significantly restrict freedom of expression.

The claimant appealed Employment Tribunal decisions refusing to vary or revoke a restricted reporting order (RRO), and refusing to reconsider that decision. An earlier EAT order had dismissed the appeals.

On review, the EAT accepted that it had overlooked two aspects of Ground 2. The claimant had relied not only on an asserted reduction in risk to the protected persons, but also on a heightened need for freedom of expression and greater evidence of public interest. The central issue was whether the Employment Tribunal had erred by failing to consider those asserted changes of circumstance when determining the application to vary or revoke the RRO.

1. The review was allowed and the appeal was allowed in part. Under Rule 33(1)(c) of the Employment Appeal Tribunal Rules 1993, review is exercised sparingly. It is not a means to re-argue a case or correct an error of law for which an appeal lies. But the interests of justice required review because the EAT had omitted to determine two self-contained and substantive arguments which had been argued before it.

2. The claimant had advanced three alleged material changes of circumstance: reduced risk to the respondents; a heightened need for freedom of expression; and greater evidence of public interest. The Employment Tribunal had determined the variation application on the basis that only reduced risk was relied upon. That reading was wrong. The material before the tribunal, including the claimant's timely challenge to the case-management summary, showed that he also relied on the latter two matters.

3. The Employment Tribunal therefore erred in law by not considering whether the asserted heightened need for freedom of expression and increased public interest were material changes of circumstance. Heightened vigilance was required because the RRO was of unlimited duration and significantly affected freedom of expression. The original balancing exercise could not simply be reopened without a material change, but every properly advanced asserted change had to be addressed.

4. The application to vary or revoke the RRO was remitted to a differently constituted Employment Tribunal. The EAT could not determine the matter itself because, absent consent, it could do so only if there were one possible outcome. The RROs remained in force pending determination of the remitted application and any application concerning the other RROs.

• Employment Appeal Tribunal: On review, the EAT varied its order of 13 November 2025. It allowed Ground 2 insofar as the Employment Tribunal had failed to consider asserted heightened freedom-of-expression and public-interest changes, and remitted the application.
• Employment Tribunal: Refused to vary or revoke the RRO and refused to reconsider that decision. No citation is stated in the judgment.