Employment Appeal Tribunal
The EAT found that an employment judge who refused an application for review with the words “your application has been refused as there is no reasonable prospect of success” had provided adequate reasons for his judgment.
The Appellant, Mr Oyesanya (“O”), had brought claims of age discrimination and race discrimination against the Respondent NHS Trust. At a PHR an employment judge concluded that O’s claims had little reasonable prospect of success and ordered O to pay a deposit within 21 days if he wished to continue with his claims. On the 20th day O applied for a review of the deposit order and/or for an extension of time to pay; the judge refused his applications. O paid the deposit orders, but after the 21-day period had expired; consequently, O’s claims were struck out. O applied for review of the decision to strike out his claims: O said that he had misread or misunderstood the notes accompanying the deposit order, and so had believed that time for payment of the deposit order had stopped while the judge was considering his applications for review and/or an extension of time.
The application was made under rule 34 of the Employment Tribunals Rules of Procedure 2004. The application was considered by the employment judge on the papers. Under rule 35(3), an employment judge “shall refuse the application if he considers that there are grounds for the decision to be reviewed under Rule 34(3) or there is no reasonable prospect of the decision being varied or revoked.”
The employment judge refused the application for review with the following words: “your application has been refused as there is no reasonable prospect of success”. O telephoned the tribunal to ask if there were reasons for the judge’s decision; O was informed that the reasons for the decision were the reasons already given, i.e. that there was no reasonable prospect of success.
O appealed on the grounds that, among other things, the judge had not provided Meek-compliant reasons for his decision, and that the judge’s decision was perverse.
The EAT (Mr Recorder Luba QC) found that in the unusual context of this case, given its very particular procedural history, the judge did meet the threshold for providing adequate reasons. The EAT acknowledged that the words “there is no reasonable prospect of success” constituted a very short explanation of the judge’s reasoning. Nevertheless, the EAT was satisfied that the words “there is no reasonable prospect of success” did two things: firstly, they showed that the employment judge was directing himself to the correct test under the correct rule (Rule 35(3) ET Rules of Procedure 2004); and secondly, they showed that the judge was discriminating between whether there were grounds for a review under rule 34(3) or whether, alternatively, if there were grounds, there was no reasonable prospect of success. Because the only ground advanced for a review was that Mr O had misunderstood or misread the notes dealing with the time for paying a deposit, the judge provided adequate reasons for refusing to review by simply describing that proposition as having “no reasonable prospect of success” in achieving a review of the earlier decision. The EAT was also satisfied that the appeal on the ground of perversity was not made out.
The Respondent was represented by Laith Dilaimi, instructed by Capsticks Solicitors LLP.
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