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Powers of Review

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The EAT has handed down an important judgment dealing with, amongst other things, the ET's powers of review. Importantly, passages in the decision (dealt with below under 'Postscript') encourage tribunals to take a practical rather than rigidly technical approach to the new procedural rules.

The Claimant was ordered to pay £500 as a deposit as a condition of continuing with her unfair dismissal claim. The formal Order did not arrive at the Claimant's solicitors' offices, because the Claimant (when completing her Claim Form) had written their postcode down incorrectly.

The claim was therefore struck out when the deposit was not paid. Upon later enquiry, the Claimant's solicitor discovered what had gone wrong and a cheque for £500 was immediately sent. The tribunal then reviewed its earlier decision, adjusted the date for payment of the £500 and allowed the claim to proceed.

Did the tribunal have power to review its earlier decision?

EAT Decision
The EAT (HHJ Peter Clark sitting alone) held:

contrary to earlier thinking, a strike out under rule 20(4) of the 2004 Rules is a judgment within the meaning of rule 28 and is capable of being reviewed.

an application for a review does not need to formally set out the statutory grounds (eg that the decision is made as the result of an administrative error). It is sufficient if the grounds may be discerned from the document containing the application.

the expression 'administrative error' includes administrative errors by the parties (as well as the tribunal). This is a change from the 2001 rules, which only covered errors by the tribunal;

the 'interests of justice' ground for review should be construed more widely than it was before the 2001 rules introduced the overriding objective;

an order requiring the payment of a deposit is not capable of review (unlike the subsequent order striking out a claim for failing to pay a deposit). However, it may be the subject of revocation or variation under rule 10(2), including the granting of an extension of time for payment.

The following observations of the EAT may be of interest to tribunal chairmen who wish to adopt a practical approach to some of the technicailites under the new Rules:

"42. The 2004 Rules introduce what, on one view, may be thought to be a series of carefully crafted hurdles designed to restrict access to Employment Tribunals and thus reduce the costs of administering the Employment Tribunal system to both Claimants and Respondents...

"84. ...Standing back, one can only speculate at what Lord Donovan and the members of his Commission, reporting in 1965, would have made of the arcane procedural points...discussed in this judgment... I nevertheless prefer to believe that the gradual modification and sophistication in Employment Tribunal Rules of Procedure over the years should be viewed not as a trap for the unwary, but a procedure designed to do justice between the parties. The introduction of the overriding objective and the increased power of employment tribunal Chairmen to make orders on their own initiative should be seen as valuable signposts to Chairmen to exercise their independent judgment to ensure fairness between the parties. It is what, to return to an earlier theme, truly distinguishes between judicial and administrative decisions."

Sodexho v Gibbons

[Thanks to Alex Lock of Beachcroft Wasbroughs, who represented Sodexho, for telling me about this judgment]