In Hypervolt Ltd v Jackson the Employment Appeal Tribunal failed to follow the mandatory reconsideration procedure.
An application for reconsideration of a judgment must be made in writing setting out why the reconsideration is necessary within 14 days of the later of –
- the date on which the written judgment was sent to the parties (note that this is the date on the judgment not the date on which it was received by the parties)
- the date that any written summary reasons were sent, if these were sent separately from the judgment, or,
- the date that any written full reasons were sent, if these were sent separately from the judgment.
Hypervolt applied for an extension of time to submit a response and for reconsideration of a rule 21 default judgment that had been issued against the company.
The mandatory process for determining a reconsideration application is contained in rule 70 of the Employment Tribunal Procedure Rules 2024 (formerly rule 72 of the Tribunal Rules 2013).
The reconsideration procedure requires determination of whether there are reasonable prospects of the original decision being varied or revoked.
A claim for unlawful deduction from wages and unfair dismissal was issued by Jackson on 12 November 2023. Hypervolt had moved offices and the claim had been served at its old address. The company failed to file a response by the response deadline and a default judgment was issued under rule 22. On becoming aware of the judgment, the company made an application in April 2024 for an extension of time to file a response and for reconsideration of the default judgment. A renewed application was made, this time accompanied by a draft ET3 response. An Employment Judge refused the application on the basis that the deadline for reconsideration had been missed and that it was not in the interests of justice to extend time. The merits of the ET3 were not assessed as to prospects.
Hypervolt appealed to the Employment Appeal Tribunal (EAT). The EAT held that the employment judge had erred in law by refusing the application having taken into account only one factor, the timing of the application. The judge had failed to take into account that there should be two stages of a reconsideration application. First, an assessment of whether there were reasonable prospects of the original decision being varied or revoked and second. Only if there are no prospects can a judge refuse the application. If there are prospects a notice must be sent to the parties setting a time limit for a response and which may set out the ET’s provisional views on the application. The notice seeks the views of the parties on whether the application can be determined without a hearing.
In Hypervolt the reconsideration was refused purely on a time basis. This was incorrect.
The case has been remitted (sent back) to the same employment judge for fresh reconsideration of the application for an extension of time and the application for reconsideration.
This blog was written by Manuela de Castro, Senior Solicitor at didlaw.
