Reconsideration of Employment
Tribunal Judgments
ā€¨A reconsideration asks the Employment Tribunal to review one of its own judgments where doing so is necessary in the interests of justice.
It is not an opportunity simply to argue that the tribunal reached the wrong conclusion or to present the same arguments again. The tribunal will only reconsider a decision where there is a genuine reason why justice requires it.
ā€¨The tribunal may reconsider a judgment:
ā€¨ā—¸ on its own initiative;
ā€¨ā—¸ following a request from the Employment Appeal Tribunal; or
ā€¨ā—¸ on the application of one of the parties.
ā€¨When Can a Tribunal Reconsider a Decision?
ā€¨There is no fixed list of grounds.
ā€¨Instead, the tribunal considers whether reconsideration is necessary in the interests of justice.
ā€¨Examples include:
ā€¨ā—¸ a significant procedural error;
ā€¨ā—¸ one party being denied a fair opportunity to present their case;
ā€¨ā—¸ important evidence becoming available that could not reasonably have been produced earlier;
ā€¨ā—¸ an obvious mistake within the judgment.
ā€¨The tribunal will balance:
ā€¨ā—¸ fairness to the applicant;
ā€¨ā—¸ fairness to the other party; and
ā—¸ the public interest in bringing litigation to an end.
ā€¨Reconsideration is therefore an exceptional remedy rather than a routine second hearing.
ā€¨What Decisions Can Be Reconsidered?
ā€¨Reconsideration only applies to judgments, including decisions relating to:
ā€¨ā—¸ liability;
ā€¨ā—¸ compensation;
ā€¨ā—¸ costs;
ā€¨ā—¸ strike out;
ā€¨ā—¸ default judgment; and
ā€¨ā—¸ other decisions finally determining part or all of a claim.
ā€¨Case management orders generally cannot be reconsidered, although the tribunal retains power to vary or revoke them where appropriate.
ā€¨How to Apply
ā€¨Applications must normally:
ā€¨ā—¸ be made in writing;
ā€¨ā—¸ be submitted within 14 days of the written judgment (or written reasons where later);
ā€¨ā—¸ explain why reconsideration is necessary; and
ā€¨ā—¸ identify the parts of the judgment the tribunal is asked to reconsider.
ā€¨How the Tribunal Decides
ā€¨The tribunal follows a two-stage process.
ā€¨Stage One ā€“ Paper Review
ā€¨An Employment Judge first considers the application without a hearing.
ā€¨If there is no reasonable prospect that the decision will be changed, the application will be refused immediately.
ā€¨Stage Two ā€“ Reconsideration
ā€¨If the application survives the initial review, the tribunal will decide whether a hearing is necessary.
ā€¨Where appropriate, the tribunal may:
ā€¨ā—¸ determine the matter following written submissions only; or
ā—¸ list a reconsideration hearing.
ā€¨If factual findings made by a full tribunal are being challenged, it is often appropriate for the same tribunal panel to hear the reconsideration.
ā€¨Possible Outcomes
ā€¨Following reconsideration the tribunal may:
ā€¨ā—¸ confirm its original judgment;
ā€¨ā—¸ vary the judgment;
ā—¸ revoke the judgment entirely; or
ā—¸ substitute a new decision.
ā€¨Although the tribunal has power to reach a completely different conclusion, this is relatively uncommon.
ā€¨Appeals to the Employment Appeal Tribunal
When Can You Appeal?
Unlike reconsideration, an appeal is not a rehearing of the case.
The Employment Appeal Tribunal only considers errors of law.
ā€¨It will not simply decide whether it agrees with the Employment Tribunal's findings.
ā€¨Common Grounds of Appeal
ā€¨An appeal may succeed where the tribunal:
ā€¨ā—¸ applied the wrong legal test;
ā€¨ā—¸ misunderstood or misapplied legislation;
ā€¨ā—¸ failed to follow binding case law;
ā€¨ā—¸ gave inadequate reasons;
ā€¨ā—¸ breached natural justice;
ā€¨ā—¸ exercised its discretion incorrectly; or
ā€¨ā—¸ reached a decision that no reasonable tribunal could have reached (known as perversity).
ā€¨Simply disagreeing with the tribunal's factual findings will not usually amount to an appealable error.
ā€¨Time Limits
ā€¨A Notice of Appeal must usually be lodged within 42 days of the relevant tribunal judgment or written reasons.
ā€¨The deadline:
ā€¨ā—¸ runs from the date the judgment or reasons are sent, not received;
ā€¨ā—¸ expires at 4:00pm on the final day; and
ā€¨ā—¸ is strictly enforced.
ā€¨Missing the deadline may prevent the appeal from proceeding.
ā€¨Importantly, making a reconsideration application does not stop the 42-day appeal period from running.
ā€¨Starting an Appeal
ā€¨The appellant must lodge:
ā€¨ā—¸ a Notice of Appeal;
ā€¨ā—¸ the Employment Tribunal judgment;
ā€¨ā—¸ the written reasons; and
ā€¨ā—¸ concise grounds explaining the alleged error of law.
ā€¨The appeal should identify precisely why the tribunal was legally wrong rather than simply why the decision is thought to be unfair.
ā€¨The EAT Sift Process
ā€¨Every appeal undergoes an initial review by an Employment Appeal Tribunal Judge.
ā€¨The judge considers whether the appeal raises an arguable error of law.
ā€¨The appeal may:
ā€¨ā—¸ proceed directly to a full hearing;
ā€¨ā—¸ be listed for a preliminary hearing;
ā€¨ā—¸ be dismissed because it has no reasonable prospect of success; or
ā€¨ā—¸ be rejected as an abuse of process.
ā€¨If rejected following the sift, the appellant may request an oral hearing to challenge that decision.
ā€¨Responding to an Appeal
ā€¨If an appeal proceeds, the respondent will normally have 28 days to file a Respondent's Answer.
ā€¨A respondent who believes the tribunal made a different legal error may also bring a cross-appeal.
ā€¨Lessons for Employees
ā€¨If you believe the tribunal has made an error, act quickly. A reconsideration application must normally be made within 14 days, while an appeal to the Employment Appeal Tribunal generally has a 42-day deadline. Because the two procedures run independently, many parties issue an appeal while a reconsideration application is still pending to avoid missing the appeal deadline.
ā€¨Before appealing, consider carefully whether the complaint is genuinely about an error of law. Simply disagreeing with the tribunal's factual findings or credibility assessments is unlikely to succeed.
ā€¨When applying for reconsideration, focus on why it is in the interests of justice for the tribunal to revisit its decision rather than simply arguing that the tribunal reached the wrong conclusion.
ā€¨Lessons for Employers
ā€¨Employers responding to reconsideration applications should remember that reconsideration is intended to be exceptional. Where the employee is simply attempting to reargue evidence already considered, the tribunal is unlikely to reopen the case.
ā€¨If an appeal is lodged, employers should identify whether the grounds genuinely disclose an arguable error of law. Many appeals fail because they amount to disagreements with the tribunal's factual findings rather than legal errors.
ā€¨Where a reconsideration application and an appeal are pursued simultaneously, employers should monitor both sets of proceedings carefully, as each follows its own timetable and procedural rules.
This guide provides general information only and is not legal advice. Anyone considering a specific contract claim or counterclaim, whether an employer or an employee, should contact us here contact@gec-law.co.uk for legal advice.