Although tribunals cannot revisit a judgment more than once, the Employment Appeal Tribunal (EAT) held in Leicester City Council v Patel that they can reconsider a case management decision twice where there had been a material change of circumstance, where the order had been based on a material omission or mistreatment, or for some other substantive reason.
After being dismissed in December 2019, Ms Patel contacted ACAS in March 2020. She was issued with an early conciliation (EC) certificate on 2 April, naming her former employer (known as the respondent) as “Leicester City Council”. On 1 May 2020, her solicitor lodged claims of unfair dismissal, discrimination and victimisation on her behalf. However, although they gave the correct EC number on the application form (ET1), they misnamed the respondent as “Leicestershire City Council”.
Her claim was then rejected by the tribunal on the basis that the respondent had been incorrectly named on the ET1. On 21 May, Ms Patel applied for that decision to be reconsidered, arguing that it was a minor error and it would not be in the interests of justice to reject the claim. The tribunal wrote back to her on 2 June 2020 to say that although the original decision had been correct, the “defect” had now been rectified and her “whole claim” could be accepted.
At a case hearing on 24 August, the tribunal confirmed that it accepted Ms Patel’s claims, but treated them as having been presented on the date that the defect was rectified. That meant, however, that the claim was presented on 21 May, rather than 1 May 2020 and was, therefore, out of time.
This issue was identified during a case management preliminary hearing on 24 August 2020, some 12 weeks after the first reconsideration. Ms Patel applied to the tribunal for a reconsideration of the first reconsideration decision, or alternatively to vary the first reconsideration so as to treat it as wrong. Ms Patel also asked the tribunal to extend its discretion to extend time for the application as it had been made outside of the usual 14-day time limit for application for reconsideration.
When the applications came before the tribunal in December 2020, the tribunal accepted them and ruled that there had been a minor error and it was not in the interests of justice to reject her claim.
The trust appealed, arguing that once a reconsideration decision has been made, there can be no further reconsideration in that regard as the original decision no longer stands. The trust then contended that the proper course for Ms Patel was to seek to appeal to the EAT, notwithstanding that she would have been out of time and that EAT time limits are notoriously strict.
Dismissing the appeal, the EAT held that the first reconsideration decision was wrong as the tribunal had not assessed the application on the basis that Ms Patel had presented it. She had argued that it was a minor error which it would be unjust to reject, whereas the tribunal had treated it as a rectification case, holding that the defect had been rectified, even though it had not.
This error amounted to such a material omission or mistreatment that the tribunal was entitled to revisit that decision. In doing so, it was entitled to find there was no prejudice to the respondent, despite the delay in Ms Patel’s application for further reconsideration, in allowing her claim to proceed. It was also entitled to find that the original mistake on the claim form had been a minor one and that it was not in the interests of justice for the claim to be rejected.
For the purposes of clarification, the EAT emphasised that although a tribunal was not free to revisit an earlier judgment because it had had a change of heart or thought better of its earlier reasoning, it could revisit an earlier case management decision where there had been a material change of circumstance, where the order had been based on a material omission or mistreatment, or there was some other substantive reason necessitating such interference, as in this case.