In the case of Leicester City Council v Patel (2022), the Employment Appeal Tribunal (EAT) have held that the Employment Tribunal (ET) can reconsider decisions for a second time in certain circumstances
Background
The background to the case of Leicester City Council v Patel (2022) is that having commenced proceedings in the Employment Tribunal for unfair dismissal and other heads of claim, the Claimant's claim was rejected as the ET1 claim form referred to the Respondent as being 'Leicestershire City Council', as opposed to 'Leicester City Council' (the correct name), and therefore did not match the name on the ACAS early conciliation certificate.
First Reconsideration
The Claimant applied for the decision to reject her claim to be reconsidered under rule 13(1)(a) of The Employment Tribunals Rules of Procedure 2013 (i.e. that 'the decision to reject was wrong'), on the basis that the error as regards the Respondent's name was a minor one, and in light of that, the decision to reject the claim was wrong. The Claimant argued that under rule 12(2A), an ET can accept an ET1 claim where there is a minor error as regards a name or address, and it was contrary to the interests of justice to reject the claim
The outcome of the first reconsideration was to allow the Claimant's claim in on the basis that the error had been corrected, but the claim was only allowed in from the date of the Claimant's application for a reconsideration. The decision was made under rule 13(1)(b) (i.e. that 'the notified defect can be rectified'), rather than rule 13(1)(a). However, the net effect of this was that the Claimant's claim was then out of time for limitation purposes.
Second Reconsideration
Accordingly, the Claimant applied for the matter to be reconsidered for a second time, which brought into question the issue of whether an ET can reconsider decisions for a second time. In the alternative, the Claimant applied for the outcome of the first reconsideration to be varied.
On this occasion, the Judge looked at the issue on the basis of how the Claimant had made her application for the first reconsideration - under rule 13(1)(a). Given this, the ET held that the Claimant's claim would be allowed in from the point at which it had been commenced on the basis that whilst there had been a minor error as regards the Respondent's name, it was in the interests of justice to allow the claim in
The Respondent appealed, asserting that an ET cannot reconsider decisions for a second time
EAT Rule That ET's Can Reconsider Decisions For A Second Time
The EAT dismissed the Respondent's appeal. It held that in certain circumstances, an ET can reconsider decisions for a second time
Case Management Order Not Judgment
The EAT held that whilst an ET could not reconsider decisions for a second time where it has simply changed its mind, in the circumstances of this case it could. That was because under rule 1(3)(b), any reconsideration decision made under rule 13 was a case management order, as opposed to a judgment. As the judge had erred in proceeding under rule 13(1)(b), as opposed to rule 13(1)(a), during the first reconsideration, the judge was entitled under rule 29 to "make a case management order...[to] vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice."
Rule 29
Hence, where the first reconsideration involves a case management order rather than a judgement, then an ET is able reconsider decisions for a second time under rule 29.
The EAT added that: "That test [in this case] was to be determined through the prism of the principle of certainty and finality in litigation and of the integrity of judicial decisions and orders (Serco Ltd v Wells [2016] ICR 768).... an ET could revisit an earlier case management decision where there had been a material change of circumstance, or where the order had been based on a material omission or mistreatment or there was some other substantive reason necessitating such interference...The error made by the ET in the first reconsideration decision amounted to such a material omission or mistreatment."
