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Employment Appeal Tribunal allows appeal in relation to reconsiderations

Published:

Overhead view of colleagues in meeting

The Employment Appeal Tribunal (His Honour Judge Shanks) has allowed an appeal against a reconsideration decision in the case of Ebury Partners UK Ltd v Acton Davis [2023] EAT 40, giving guidance on when it is, and is not, appropriate for an Employment Judge (“EJ”) to reconsider his or her previous decisions.

The central dispute before the ET was whether a change to terms of the claimant’s remuneration package, and in particular to his bonus, constituted a repudiatory breach of either the express terms of his contract of employment or of the implied duty of trust and confidence, so as to entitle him to resign and claim constructive unfair dismissal. After trial, the Employment Judge concluded that the change was neither a breach of the express terms of his contract, nor of the implied duty of trust and confidence. The claim was therefore dismissed.

The claimant did not appeal to the EAT, but instead sought reconsideration of the decision under rule 70 of the Employment Tribunal Rules of Procedure. That application was limited to the way in which the judge had originally interpreted the express terms. The Judge decided to reconsider the judgment, but rejected the claimant’s arguments in relation to the express terms. However, he went on to reconsider the implied duty of trust and confidence of his own motion and held that it was breached by the manner in which the remuneration package was varied.

The respondent appealed on the issue of whether the EJ should have reconsidered the judgment at all and, more specifically, in relation to the duty of trust and confidence. The claimant cross-appealed against the dismissal of the claim based on the express terms in the reconsideration judgment.

The EAT allowed Ebury’s appeal and dismissed the claimant’s cross-appeal. It emphasised that the ET can only reconsider a decision if it is necessary to do so in the interests of justice, noting that “A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a ‘second bite of the cherry’ and the jurisdiction to reconsider should be exercised with caution.” It continued, giving the following guidance, “In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party had been denied a fair and proper opportunity to present his case, the jurisdiction should not be invoked to correct a supposed error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the case where the error alleged is one of law which is more appropriately corrected by the EAT” ([24]). The EJ, the EAT found, appeared to have decided to carry out a reconsideration because he had reached a new conclusion based entirely on material which was before him at the time of his original judgment. That “is certainly not generally considered a good ground for reconsidering a judgment” ([27]).

In relation to the question of the proper construction of the express terms of the contract, the EAT considered that “the proper way to challenge [it] would have been by way of a timeous appeal to the EAT on a point of law.” Further, in reconsidering the question of breach of the duty of trust and confidence, the EJ went on a frolic of his own: “It cannot be right for the tribunal of its own accord to reconsider a different aspect of the judgment, particularly when neither party has presented any argument about it” ([32]).

Paul Skinner acted for the successful Appellant, Ebury Partners UK Ltd, instructed by Sophie Clarke of EMW Law LLP