M Jarosinski v Nestle UK Ltd
[2023] EAT 157
Ebury Partners UK Limited v M Acton Davis
29 March 2023
[2023] EAT 40
Employment Appeal Tribunal
A company stopped paying its employee a bonus. The employee sued, lost, then asked the judge to reconsider. A higher court said the judge shouldn't have reconsidered and the employee lost again because they didn't make the right arguments.
Key Facts
- •Mr Acton Davis (Respondent) was employed by Ebury Partners UK Ltd (Appellant) as Head of Sales UK, later seconded to Canada as Country Manager.
- •His remuneration included a large discretionary commission element, arguably contractually entitled under a side letter.
- •In May 2019, the commission was stopped, leading to his resignation and claims of unfair and wrongful constructive dismissal.
- •The Employment Judge (EJ) initially found no breach of contract but later reconsidered and found a breach of the implied term of trust and confidence.
- •Ebury Partners appealed the reconsideration, and Mr Acton Davis cross-appealed the EJ's initial contractual interpretation.
Legal Principles
A Tribunal may reconsider a judgment if necessary in the interests of justice.
Rule 70, Employment Tribunals Rules of Procedure
The interests of justice include finality in litigation; a 'second bite of the cherry' is unusual.
Rule 70 and case law interpretation
Reconsideration is appropriate for procedural mishaps preventing fair case presentation, not correcting legal errors (better addressed by EAT).
Case law interpretation
Outcomes
Appeal allowed; cross-appeal dismissed.
The EJ improperly reconsidered the judgment, failing to assess the interests of justice and deciding on a new basis not argued for.
EJ's original judgment reinstated.
The reconsideration was inappropriate given the lack of procedural mishap and the availability of an EAT appeal on the contractual interpretation.
EJ's reconsideration on the breach of implied term of trust and confidence deemed inappropriate.
This was not part of the reconsideration application; the EJ went beyond the scope of the application.