Banerjee v Royal Bank of Canada

An Employment Tribunal may reconsider a judgment on its own initiative where this is necessary in the interests of justice. That route is distinct from reconsideration on a party’s application. A party may remind the Tribunal of its own-initiative power, without thereby making an out-of-time application, provided that the Tribunal genuinely acts autonomously.

The principle of finality does not prevent reconsideration while reconsideration or appeal remains available. It may be appropriate where the parties and Tribunal have misunderstood the applicable law and an uncorrected order could produce unjust compensation. In fixing an ACAS uplift under Trade Union and Labour Relations (Consolidation) Act 1992, the Tribunal must consider both the gravity of the breach and whether the monetary result is proportionate.

The claimant brought an unfair-dismissal claim. At a liability hearing, the Employment Tribunal determined that compensation should be increased by a 25% ACAS uplift, although the parties had agreed that issue without evidence of quantum.

At the subsequent remedies hearing, the respondent submitted that the Tribunal could reconsider the uplift on its own initiative. The Tribunal ordered reconsideration under rules 70 and 73 of the Employment Tribunals Rules of Procedure 2013. The claimant appealed, contending that the respondent had effectively made an out-of-time application and that finality prevented reconsideration.

The central issue was whether the Tribunal lawfully invoked its own-initiative reconsideration power to revisit the percentage uplift.

1. Appeal dismissed. The respondent had not made an application for reconsideration. Counsel had identified both the unavailable application route and the separate route by which the Tribunal could act on its own initiative. The submission ultimately invited the Tribunal to use its own powers under rules 70 and 73.

2. TCO In-Well Technologies UK Ltd v Stuart established that a party’s application for reconsideration and a Tribunal’s own-initiative reconsideration are alternative processes. It did not govern a short submission inviting the Tribunal to consider acting under its own-initiative power. An advocate may remind a Tribunal of that power. On the facts, the Employment Judge independently identified the need to intervene and acted on the Tribunal’s own initiative.

3. The Tribunal had been entitled to correct an order produced by a shared misunderstanding of the law governing an ACAS uplift. Under section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, the percentage must reflect the nature and gravity of the breach, but its monetary effect must also be proportionate. Where substantial compensation may be involved, quantum evidence may be essential before fixing the percentage.

4. Finality was important but not absolute. The order remained susceptible to reconsideration and appeal. This was not an attempt to introduce a new argument or obtain a second opportunity to argue a point. It was an appropriate use of reconsideration to address an error arising from the parties’ agreed issue and the Tribunal’s failure to apply the law already identified in the respondent’s written submissions.

5. The Tribunal might preferably have invited submissions before ordering own-initiative reconsideration. However, that procedural point was outside the pleaded ground of appeal and, in any event, further submissions would not have altered the outcome. The claim was remitted to the Tribunal to proceed accordingly.

• Employment Appeal Tribunal — dismissed the claimant’s appeal and remitted the claim to the Employment Tribunal to proceed with reconsideration.
• Employment Tribunal — at the liability stage ordered a 25% ACAS uplift; at the remedies stage ordered reconsideration of that uplift on its own initiative under rules 70 and 73 of the Employment Tribunals Rules of Procedure 2013.