Can a tribunal give a written judgment (without reasons), and give written reasons on a later occasion?
Technically yes, held the EAT in Shaw v Intellectual Property Office, but to do so could be dangerous and is not encouraged.
The tribunal reserved its decision on a merits hearing, as well as on an application for a permanent anonymity order. It envisaged publishing the anonymity decision first, so that the Claimant's name was not made public before he could appeal. When it gave its written judgment and reasons on anonymity, it also issued a liability judgment reading, "the Claimant's complaints are not well founded and are dismissed". Full written reasons followed several weeks later.
The Claimant appealed, arguing that this was an error of law and a breach of rule 62, The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The EAT held that there was no error of law, but expressed caution. In different circumstances it could give rise to a challenge to the integrity of the decision or process.
On a separate point, when he got the written reasons, the Claimant applied for a reconsideration. The application was refused on the papers. The Claimant appealed against the rejection both on its merits and the process. The EAT held that as the appeal on its merits had been dismissed previously at a 3(10) hearing, the refusal could not be re-opened.
However, the EAT was critical of the employment judge's decision to invite general comments from the Respondent before deciding whether to dismiss the application under rule 72(1) as having no reasonable prospect of success. It is unusual to request comments from the other parties at the preliminary stage, especially comments of a general nature rather than on a specific issue. There may be circumstances where that might be appropriate, but any request should be tailored.
Thanks to Charles Murray of Queen Square Chambers and Magdalen Chambers for preparing this case summary.
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