A party may invite a tribunal to reconsider a judgment on its own initiative

A party may invite an employment tribunal to reconsider a judgment on its own initiative, even if that party is out of time to request a reconsideration itself and may not then be considered to have made an application for reconsideration, according to the EAT.

Banerjee v Royal Bank of Canada (UKEAT/0189/19/JOJ)

What are the practical implications of this judgment?

The useful points of principle explained in this judgment arise from factual circumstances where an employment tribunal:

• determined the level of an uplift to compensation for a failure to comply with an Acas Code of Practice at 25% at a liability hearing prior to considering the baseline compensatory award figure
• was subsequently invited by the respondent at the remedies hearing (by which time the period to make an application for reconsideration had passed) to ‘on its own initiative’ reconsider the percentage uplift as the amount to be derived from the application of the 25% uplift would be disproportionate taking into account the potentially very high baseline compensatory award figure

This judgment makes clear that if a party has, for whatever reason, missed the time limit for applying for reconsideration of a judgment (and consider that they would not obtain an extension of time to do so) they may still be able to invite the tribunal to reconsider the judgment on its own initiative under ET Rule 73. In doing so a party should be careful not to be seen, by virtue of making that suggestion, as having made their own application for reconsideration under Rule 70.

This judgment also acts a useful reminder of the principles in Wardle and the basis on which the discretion to award an uplift for a failure to comply with an Acas Code of Practice should be exercised (i.e. that the monetary consequences must be considered so that the sum awarded is proportionate to the breach). Parties should also note that, on the question of hearing evidence about quantum, the judgment advises that:

• in cases where there is a risk of a disproportionate award the tribunal should hear evidence about quantum before fixing the appropriate percentage
• in some cases it may not be not necessary to hear evidence on quantum, for example, if the sums involved are modest the tribunal may not consider that it is necessary to establish the multiplicand (i.e. the compensatory award) first since it can foresee that the final figure will be within an acceptable range, but
• in some cases, detailed evidence of quantum will be critical.

Case details

• Court: Employment Appeal Tribunal
• Judge: Lord Summers
• Date of judgment: 30 October 2020

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