Donna Edinboro v Jamma Umoja (Residential Services) Ltd
[2024] EAT 61
M Jarosinski v Nestle UK Ltd
24 October 2023
[2023] EAT 157
Employment Appeal Tribunal
Imagine a judge deciding a case without properly checking if it even needed a full hearing first, and doing it by themselves instead of with their colleagues. That's what happened here. The higher court said the judge had to go back and check if the case should even be heard before a full reconsideration.
Key Facts
- •Mr Jarosinski (Claimant) appealed a reconsideration judgment dismissing his discrimination claims and confirming an unfair dismissal with 100% contributory fault.
- •Employment Judge (EJ) Ayre refused reconsideration without a hearing, applying Rule 72(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.
- •The Claimant appealed on procedural grounds (EJ deciding alone) and substantive grounds (irrelevant factors considered).
- •The Respondent cross-appealed, arguing the EJ failed to consider Rule 72(1) (reasonable prospect of success).
- •The Claimant's application involved 33 pages of detailed commentary and a request for new evidence.
- •The Respondent raised concerns about the lack of a 'paper sift' under Rule 72(1) and the potential for unfairness if new evidence was admitted.
Legal Principles
Reconsideration applications under Rule 71 of the ET Rules must follow the prescribed steps in Rule 72.
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rules 72(1)-(3)
Rule 72(1) requires a 'sift' stage to assess the reasonable prospect of success before proceeding to a hearing under Rule 72(2).
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rule 72(1)
Unless it's impracticable, Rule 72(3) requires reconsideration under Rule 72(2) to be by the original Tribunal, not a single EJ.
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rule 72(3)
New evidence must meet the criteria in Ladd v Marshall [1954] 3 All ER 745 to be admissible.
Ladd v Marshall [1954] 3 All ER 745
When considering reconsideration, the Employment Tribunal should not engage in hypercritical focus on isolated passages of the EJ's reasons.
DPP Law Ltd v Greenberg [2021] EWCA Civ 672
Outcomes
The EJ's decision was set aside.
The EJ erred by applying Rule 72(2) without first considering Rule 72(1) and by deciding alone instead of with the full Tribunal. This deprived the Respondent of a 'sift' stage and the Claimant of a full Tribunal's consideration.
The Claimant's 'time ground' appeal failed.
The EJ permissibly considered the length and complexity of the litigation when assessing the public interest in finality.
The case was remitted to a different EJ to reconsider the application under Rule 72(1).
To avoid a 'second bite' of the cherry and ensure fairness to both parties, a different EJ should conduct the sift under Rule 72(1).