TCO In-Well Technologies UK Ltd v Stuart

Under the Employment Tribunal reconsideration rules, reconsideration on a party’s application and reconsideration on the Tribunal’s own initiative are alternative procedures. A Tribunal cannot convert a pending application concerning a particular issue into a reconsideration of its own initiative concerning that same issue.

It must determine the application, including whether time should be extended for a late application, before considering the substantive merits. A decision which ignores a party’s material opposition is procedurally and substantively unfair and cannot stand.

The claimant succeeded before an Employment Tribunal in his unfair-dismissal claim and received a compensatory award. After judgment, he made a late written application for reconsideration seeking a tax gross-up of that award. The employer opposed the application on grounds of lateness and substance.

Instead of determining the application, the Tribunal purported to reconsider the award on its own initiative and increased it. The employer appealed. The central issue was whether the Tribunal could use the own-initiative procedure while a party’s opposed application for reconsideration of the same issue remained pending.

1. Appeal allowed. The Tribunal’s July judgment was set aside and the outstanding reconsideration application was remitted to a freshly constituted Tribunal.
2. Rules 70 to 73 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 establish alternative routes to reconsideration. A party may apply under Rule 71, or the Tribunal may act on its own initiative under Rule 73. The Rules do not permit a hybrid process in which a party’s application concerning one issue is taken over by the Tribunal as an own-initiative reconsideration of that same issue.
3. The claimant had made an opposed Rule 71 application. Rule 72(1) required an Employment Judge to consider it. Because it was late, the Tribunal first had to decide whether to extend time under Rule 5 and give reasons for that decision, consistently with Practice Surgeries Limited Surrey Primary Care Trust v Srivatsa UKEAT/0212/15. Only if time were extended would it be necessary to consider whether the award should be reconsidered in the interests of justice.
4. The Tribunal instead bypassed the live application and failed to address the employer’s objections. Its reasons considered only the perceived injustice to the claimant and ignored the opposing contentions. That lack of balance was procedurally and substantively unfair and tantamount to a breach of natural justice.
5. The conclusion was confined to the same issue being raised by both routes. A Tribunal may identify a separate issue which merits own-initiative reconsideration while dealing with a party’s application on another issue.
6. As no single outcome of the reconsideration application was inevitable, remittal was required. Remittal to the same Tribunal was inappropriate because its earlier approach lacked balance. The fresh Tribunal must decide lateness and any extension of time first, then the substantive application if necessary.

• Employment Appeal Tribunal: appeal allowed. The Employment Tribunal’s own-initiative reconsideration judgment was set aside and the late reconsideration application was remitted to a fresh Tribunal.
• Employment Tribunal: held that the claimant had been unfairly dismissed for making protected disclosures and made a monetary award. It later purported to reconsider the compensatory award on its own initiative by applying a tax gross-up.