The Employment Judge when making the initial decision has a binary determination to make. Should the application for reconsideration be refused because there is no reasonable prospect of the judgment being varied or revoked (the prospects dismissal) or should it proceed (the permission to proceed decision)? This was described by His Honour Judge Auerbach in Shaw as a "sift or a permission stage".
Only if a permission to proceed decision is taken should a permission to proceed notice be sent to the other parties which requests their written representations. The permission to proceed notice may include the provisional views of the Employment Judge. The other parties then have the opportunity to provide written representations and state whether they consider a hearing is required to determine the reconsideration application. Thereafter the Employment Judge must make the method of determination and panel composition decisions.
Where an Employment Judge makes a permission to proceed decision, all that is determined is that it cannot be said that there is no reasonable prospect of the judgment being varied or revoked. The permission to proceed decision is taken before the other parties have had a chance to submit written representations. Strictly speaking, it does not even amount to a decision that there is a reasonable prospect of the judgment being varied or revoked, because it is only the expression of an initial view, having heard only from the party making the application for reconsideration.
Accordingly, appeals against a permission to proceed decision are not to be encouraged and will rarely be successful because the appellant has yet to put forward their response in the Employment Tribunal and still will have a full opportunity to argue that the reconsideration application should be dismissed; and could still assert that the reconsideration application had no reasonable prospect of success, if that became relevant for matters such as costs. The first stage exists so that if an application for reconsideration is obviously hopeless the other parties are not put to the trouble and cost of responding.
Experience in the Employment Tribunal and EAT suggests that there has been a steady increase in applications for reconsideration, often being no more than an attempt to re-argue the case. Multiple applications are not uncommon. The requirement to apply this structured approach should not alarm Employment Judges who have to consider applications for reconsideration because, if they are no more than an attempt to re-argue a claim that has already been determined properly, it is likely that it can be said that there is no reasonable prospect of the judgment being varied or revoked. Where repeat applications are made the rule specifically provides that one of the reasons why it may be said that there is no reasonable prospect of the judgment being varied or revoked is where, unless there are special reasons, substantially the same application has already been made and refused. The time limit in which an application for reconsideration should be made is relatively short.
If an Employment Judge makes a permission to proceed decision all that should be done at that stage is to issue a permission to proceed notice, which may include the provisional views of the Employment Judge. The provisional views are of no binding effect. Before any further determination can be made on the application for reconsideration, the Employment Judge must, having considered any response to the permission to proceed notice, make the method of determination and the panel composition decisions.
In a case in which the reconsideration application challenges substantive findings of fact made by a panel and a permission to proceed decision is taken, it often will be appropriate for the reconsideration application to be determined by the full panel. The Employment Judge is required to consider the matter and to take a panel composition decision.
I am informed that time was extended for the reconsideration applications. Employment Judge Hyams was making the initial decision. He could, at the stage he was considering the reconsideration applications, only decide to make a prospects refusal; or a permission to proceed decision, in which case he was required to direct that a permission to proceed notice be issued, which could include his provisional views. He could not yet take any of the other steps in the reconsideration process.
Employment Judge Hyams provided a written decision ("the Second Stage 2 EV Reconsideration Decision") to which written reasons were attached ("the Second Stage 2 EV Reconsideration Reasons").
The Second Stage 2 EV Reconsideration Decision was in the following terms:
The Second Stage 2 EV Reconsideration Decision suggests that the initial decision has been taken in respect of both applications for reconsideration and that most grounds have been the subject of prospects dismissal and some have been given permission to proceed on terms set out in the reasons. However, as we shall see, the Second Stage 2 EV Reconsideration Reasons show that the position is not nearly as simple as that.
The parties were given an opportunity to comment on Employment Judge Hyams's proposals. However, the Stage 2 process is now stayed so the comments have not been considered.
I shall consider each of the challenged determinations in turn, dealing with the various challenges brought by the parties.
The Second Stage 2 EV Reconsideration Decision suggests that this matter was the subject of a prospects dismissal on the basis that there is no reasonable prospect of the judgment being varied or revoked. However, the Second Stage 2 EV Reconsideration Reasons suggest otherwise:
Employment Judge Hyams only stated that there is no reasonable prospect of the judgment being varied or revoked at this stage and that the matter could be considered further on the basis of the material put forward by Tesco, and on hearing further submissions, at the final hearing. That demonstrates that Employment Judge Hyams considered that there is a prospect of the determination being varied or revoked, but he decided that the matter should be put off to the final hearing.
The parties all agree that the findings of fact must be finalised as part of the Stage 2 process and that it is wrong in principle to put the matter off to the final hearing. I agree.
The parties spent a great deal of time and effort in seeking to establish that the introduction of new material and further submissions should or should not be permitted. However, Employment Judge Hyams could only properly make the initial decision without consideration of the claimants' submissions and either issue a prospects dismissal on the basis that there is no reasonable prospect of the judgment being varied or revoked or take a permission to proceed decision which would result in a permission to proceed notice being issued, in which he could state his provisional views, after which the other parties could make their submissions.
Because Employment Judge Hyams clearly concluded that this matter merited further consideration he erred in law in issuing a prospects dismissal. He should have made a permission to proceed decision and issued a permission to proceed notice. I accept that there was material before him that meant that was a permissible option. Once the stay is lifted Employment Judge Hyams should issue a permission to proceed notice and then go through the further mandatory stages of consideration of the reconsideration application. During that process the claimants will be able to make their full submissions.
I suggested at the hearing that it might be possible to direct that any elements of the reconsideration application that proceed should go through to a hearing. I raised that suggestion in part because I had assumed that the matters remitted by Stacey J would be determined at a hearing. I was later informed that was not necessarily the case. Although the parties agreed to my suggestion, on reflection, I consider that I should not seek to short-circuit the mandatory stages of consideration of the reconsideration application. There have already been an excessive number of appeals in this matter and I am keen that the EAT should not take decisions properly taken by the Employment Tribunal, otherwise the parties may come to see the EAT as an alternative venue for determination of matters that are for the Employment Tribunal.
Accordingly, I will merely substitute a permission to proceed decision in respect of this issue and remit the matter to the same Employment Tribunal so that, when the stay is lifted, Employment Judge Hyams can issue a permission to proceed notice and then go on, in the light of the responses from the parties, to make the panel composition decision and method of determination decision and go through the remaining stages of the process before determining the application for reconsideration as part of the Stage 2 process. It will be open to the claimants to assert that Tesco should not be permitted to introduce new evidence or make new submissions. The facts must be found as part of the Stage 2 process. Fact finding cannot be put off to the final hearing.
In the Second Stage 2 EV Reconsideration Decision this matter was the subject of a permission to proceed decision. However, in the Second Stage 2 EV Reconsideration Reasons Employment Judge Hyams stated:
The reasoning is rather hard to follow. Employment Judge Hyams, having made the permission to proceed decision, appears to have thought that the witness statement of Mr Evans did not bear scrutiny but the situation might be improved as a result of (presumably inept) cross-examination and that the respondent, should it wish to, could call Mr Evans at the final hearing.
The parties agree that any further fact finding must be made before Stage 2 is completed and cannot be put off to the final hearing.
The claimants contend that there should have been a prospects dismissal on the basis that it should have been concluded that no further evidence could be provided because to allow new evidence to be introduced would go against the principle of finality.
Employment Judge Hyams was only taking the initial decision. He made a permission to proceed decision on the basis that the matter merited further consideration, putting that off to the final hearing. The Employment Tribunal had itself suggested the possibility of further evidence on this matter. On balance, I do not consider it was perverse of Employment Judge Hyams to make a permission to proceed decision, but he should have done no more than issue a permission to proceed notice, possibly with his provisional views about the evidence of Mr Evans. That does not preclude the claimants submitting that the application should be determined on the basis of the witness statement submitted (rather than what might come out in cross-examination) and that proper application of the principle of finality precludes the introduction of further evidence or submissions as part of the Stage 2 process. This matter is remitted for Employment Judge Hyams to issue a permission to proceed notice and to go through the further mandatory reconsideration stages once the stay has been lifted.
This was the subject of a prospects dismissal in the Second Stage 2 EV Reconsideration Decision. The challenge to this decision is not opposed by Tesco. I substitute a permission to proceed decision and this matter will be remitted to the Employment Tribunal to issue a permission to proceed notice and to go through the further mandatory reconsideration stages once the stay has been lifted.
This was the subject of a prospects dismissal in the Second Stage 2 EV Reconsideration Decision. In the Second Stage 2 EV Reconsideration Reasons Employment Judge Hyams stated:
This challenge arose from the surprising decision of the Employment Tribunal to use training videos as part of their findings of fact. That problem may be ameliorated when the tables that Stacey J required are produced. However, there is a legitimate concern about the use of evaluative language, when at Stage 2 the Employment Tribunal is concerned with the "facts of the work" rather than the "value of the work". The Employment Tribunal noted the videos included statements that were "intended to grab the attention and was plainly not intended to be taken literally" and referred to "60 billion slip and trip hazards" which words "were plainly used by the presenter in a wryly humourous way with a view to gaining the attention of the viewer". It is arguable that such material should be omitted. I have concluded that it was perverse to issue a prospects dismissal. The matter was sufficiently arguable that the only proper outcome was to make a permission to proceed decision. I substitute a permission to proceed decision and this matter will be remitted to the Employment Tribunal to issue a permission to proceed notice and go through the further mandatory reconsideration stages once the stay has been lifted.
This was the subject of a prospects dismissal in the Second Stage 2 EV Reconsideration Decision. In the Second Stage 2 EV Reconsideration Reasons Employment Judge Hyams stated:
Employment Judge Hyams himself recognised that the approach he adopted to fact finding might "be said to have been less than even-handed" where facts were found about the risks resulting from errors being made by the comparator but not the claimant. This was on the basis that the "risks of making a mistake by a customer assistant were obvious" in part "because shopping is an everyday activity" whereas "visiting a DC is not." I consider that reasoning fails to address the fact that, as Mr Jones for the Leigh Day claimants puts it "the Independent Experts can only base their reports on the facts relating to the question, not on their knowledge of shopping." As Stacey J stated in the Stage 2 EV EAT Judgment "an obvious relevant fact still needs to be stated". The point is arguable and it was perverse to issue a prospects dismissal. I substitute a permission to proceed decision and this matter will be remitted to the Employment Tribunal to issue a permission to proceed notice and go through the further mandatory reconsideration stages once the stay has been lifted.
Note 1 Section 65(1)(c) and 65(6) Equality Act 2010 and Rules 1(2) and 6(1)(a) Employment Tribunals (Equal Value) Rules of Procedure. [Back]
Note 2 Section 65(1)(c) and 65(6) Equality Act 2010 and Rules 6(2), 6(3) and 7(1)(b) Employment Tribunals (Equal Value) Rules of Procedure. [Back]
Note 3 Shields v E Coomes (Holdings) Ltd [1978] ICR 1159 per Lord Bridge at 1180 C-D. [Back]
Note 4 Beal v Avery Homes (Nelson) Ltd [2019] EWHC 1415 (QB) per Lavender J at ¶30. [Back]
Note 5 Beal v Avery Homes (Nelson) Ltd per Lavender J at ¶32. [Back]
Note 6 Beal v Avery Homes (Nelson) Ltd per Lavender J at ¶¶31-32. [Back]
Note 7 Beal v Avery Homes (Nelson) Ltd per Lavender J at ¶30. [Back]
Note 8 Brunnhofer v Bank der Österreichischen Postsparkasse AG [2001] 3 CMLR 9 at ¶48. [Back]
Note 9 Rules 4(1)(d)(ii) and 6(1)(a) Employment Tribunals (Equal Value) Rules of Procedure. [Back]