Hypervolt Limited v S Jackson

An Employment Tribunal considering a reconsideration application must follow the mandatory two-stage process in rule 72 of the Employment Tribunal Rules of Procedure 2013. It must first decide whether there is no reasonable prospect of varying or revoking the original decision. If that threshold is not met, it must obtain the other parties’ response and consider whether a hearing is required.

An application to extend time for a response must be addressed in its entirety. The Tribunal must weigh all relevant factors, including the respective prejudice. A conclusory statement that an extension is not in the interests of justice, without reasons showing that those matters were considered, is insufficient.

The employer appealed against the East London Employment Tribunal’s refusal of its applications to extend time for an ET3 response and to reconsider a rule 21 judgment. That judgment had determined liability for an unauthorised deduction from wages and unfair dismissal after no valid response was filed.

The employer’s renewed application included a draft response and explanations for the delay. The Regional Employment Judge refused reconsideration on the brief basis that it was late and that extending time was not in the interests of justice. A remedy hearing was then listed.

The central issue was whether the Tribunal had considered both applications under the required procedure and given adequate reasons for its refusal.

1. Appeal allowed. The refusal of the applications and the consequential listing of a remedy hearing could not stand. The matter was remitted to Regional Employment Judge Burgher for fresh reconsideration.

2. The employer had advanced two distinct applications: an extension of time to present a response and reconsideration of the rule 21 judgment. The short refusal did not show that the Tribunal had addressed the extension application or all matters advanced in support of either application.

3. Rule 72(1) of the Employment Tribunal Rules of Procedure 2013 imposes a mandatory first-stage inquiry. The Employment Judge must decide whether there is no reasonable prospect that the original decision will be varied or revoked. If there is a reasonable prospect, the process in rule 72(1) and, where applicable, rule 72(2) must then be followed. The Tribunal’s reference only to lateness and the interests of justice did not demonstrate that it had applied that structure.

4. In deciding whether to extend time, the Tribunal had to consider and balance all relevant circumstances, including the prejudice to each party. It was not apparent that it had considered the explanations for delay, the proposed response, or the respective prejudice. The conclusion that an extension was not in the interests of justice gave no underlying reasons.

5. The reasons were also inadequate. They did not explain why the applications failed or permit an appellate court to identify whether the necessary legal approach had been applied. The Tribunal must reconsider the applications afresh, make findings and give reasons in accordance with the relevant Rules and authorities. The remittal was to the same Regional Employment Judge; it was not merely an invitation to expand the earlier decision.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the applications for fresh reconsideration: [2026] EAT 45.
• East London Employment Tribunal: Refused the employer’s applications on 2 July 2024 and listed a remedy hearing on 3 July 2024, following a rule 21 judgment issued on 6 March 2024.