Employment Tribunal reconsideration: why it is not a second chance to argue the case

The core point: reconsideration is not a second chance to argue the case

When an Employment Tribunal judgment arrives, the first reaction is often emotional. A claimant may feel the Tribunal misunderstood the facts. A respondent may think the Tribunal accepted the wrong evidence. Either side may read the reasons and immediately see a point they wish they had put more clearly.

The temptation is obvious: ask the Tribunal to look at the case again. That procedure exists. It is called reconsideration. But reconsideration is not a general right to re-run the hearing.

The central question is not whether a party disagrees with the judgment. The central question is whether reconsideration is necessary in the interests of justice. That is a much narrower test.

What reconsideration can do

The Tribunal may reconsider a judgment on its own initiative or on a party’s application. If the test is met, the judgment may be confirmed, varied or revoked. If it is revoked, the Tribunal may take the decision again and is not required to reach the same conclusion.

That sounds broad. In practice, it is controlled by important limits. The Tribunal is not simply being asked whether it might have decided the case differently. It is being asked whether justice requires the judgment to be revisited.

Finality is also part of justice. A party who has won after a fair hearing is entitled to some finality. Witnesses should not normally have to return, costs should not keep escalating, and Tribunal time should not be consumed by repeated attempts to reopen decisions.

The wrong starting point: “I lost, so I apply”

The first trap is simple: a party loses, then applies for reconsideration because the outcome feels wrong. That is usually the wrong starting point.

Losing, or disagreeing with the outcome, is not enough by itself. A party will usually not get reconsideration simply because, after reading the judgment, they have thought of a better way to put the case. Nor will reconsideration usually be granted because a party wants to repeat arguments already made and rejected.

The application needs to identify what went wrong, why it mattered, why it meets the interests-of-justice test, and what practical outcome is sought. The stronger application is specific. The weaker application attacks everything.

Correction, reconsideration and appeal are different routes

Not every Tribunal decision is a judgment. That matters because different procedural routes exist for different kinds of problem. A clerical error may belong under the correction power. A judgment may be capable of reconsideration. A case-management order may require a variation application. A rejected claim or response has its own reconsideration route. A legal error may need an appeal.

These routes should not be blurred. Choosing the wrong route can waste time, weaken the application, and create deadline risk.

The practical tests before applying

Except where the application is made during a hearing, a reconsideration application must normally be made in writing, explain why reconsideration is necessary, and be sent to the Tribunal within 14 days of the later of the written judgment record being sent or separate written reasons being sent.

The application should not simply say that the judgment is wrong or unfair. It should identify the specific part of the judgment being challenged and the outcome sought, usually variation or revocation.

Common scenarios: what may, and may not, be enough

Factual disagreement is usually not enough. A party may say the Tribunal should have believed a different witness, gave too much weight to one document, or ignored part of the evidence. That may be deeply felt. But reconsideration is not a chance to ask the same Tribunal to reweigh the case because one party dislikes the result.

There are exceptions. A factual issue may cross the line if there was no evidence for a finding, if the Tribunal materially misunderstood the evidence, if it failed to decide a live issue, if its reasons do not explain a central finding, or if a party had no fair opportunity to deal with the point.

New evidence is also difficult. The fact that evidence is new to the application does not mean it justifies reconsideration. The Tribunal is likely to want to know why the evidence could not reasonably have been obtained earlier, whether it is credible, and whether it would probably have had an important influence on the outcome.

Repeated applications are especially difficult. A repeated application is not improved simply because it is longer, more forceful, or differently labelled. More detail about the same rejected complaint will usually not be enough.

The appeal warning: reconsideration does not normally protect EAT time

Reconsideration is not an Employment Appeal Tribunal appeal. Reconsideration is the Tribunal looking again at its own judgment where the interests-of-justice test is met. An EAT appeal is generally about legal error.

Some problems may raise both reconsideration and appeal considerations. Procedural unfairness may justify reconsideration and may also be an appeal point. An omitted live issue may be something the Tribunal could revisit, but it may also amount to an error of law.

The danger is assuming that one route protects the other. It usually does not. A reconsideration application does not normally stop or extend the EAT appeal deadline. A party who waits for reconsideration to be decided may find that appeal time has expired.