United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Perera 1 Kingswood Close New Malden Surrey KT3 6PX
For the Respondent	MS RACHEL LEWIS Messrs Farrer & Co Solicitors 66 Lincoln Inn Fields London WC2A 3LH

SUMMARY

Leave to amend claim to include certain unfair dismissal complaints rejected by Tribunal Chairman. Attempt made before another Chairman to contend that the amendment should be permitted because it merely gave a label to what had already been identified in the body of the claim. This was a fresh argument. Ought the second Chairman to have reconsidered the original Chairman's decision? Observation made on the distinction between review and reconsideration of Tribunal case management rulings and the circumstances where reconsideration is permissible.

1. This appeal raises the question of the scope of the power of Employment Tribunals to reconsider case management decisions. It was originally sifted and thought to have no reasonable prospect of success by Mr Justice Langstaff, but the Appellant sought an oral hearing pursuant to Rule 3(10), as was his right, and the same judge heard it again but this time directed that there should be a full appeal.
2. The background is as follows. The proposed Appellant in this appeal (whom I shall refer to as the Claimant, as he was below) presented electronically a claim to the Employment Tribunal on 28^th June 2004. In the section identifying the type of complaint he said this:

"Race discrimination -direct and indirect; harassment on the grounds of my race; victimisation; unfair selection for redundancy; sex discrimination."

He also filled out the section which asks the Claimant to identify a date when the matter of which the Complainant is complaining occurred but only if the Claimant is not complaining about dismissal. He left blank the section which asks those complaining about unfair dismissal what remedy they are seeking. In the body of the claim he set out the details of his complaint. He asserted that he was a Branch Secretary and spent half his time on union duties. He had been transferred to a new job which he claims to have thought was a temporary secondment but was later told that it was permanent. He thought that the job was beyond him, particularly in the time he could devote to it. He says that this job made him more vulnerable to redundancies, and indeed he was selected for redundancy on 6^th April 2005. He was given six months notice of dismissal on that date. He therefore put in his application form before his dismissal took effect. It is clear however that claims for unfair dismissal can be lodged after a notice of dismissal is given but before it takes effect; see Section 111 (3) of the Employment Rights Act 1996. Nowhere did he in terms say that he was making a claim for Unfair Dismissal. He did however say this:

"I feel the English Heritage is taking this opportunity to get rid of me and that this is due to my trade union involvement and race discrimination. In the months since taking up the new post I have felt harassed and victimised. Those in senior management I try to communicate with often did not respond or only after a long time. I believe that I have challenged through my work and commitments whilst with English Heritage the institutional racism and bullying prevalent amongst senior management throughout English Heritage."

3. I pause to observe that it seems to me the only reasonable inference is that one of the complaints at least is that the Claimant has been selected for redundancy in part because of his trade union involvement. Unless the selection decision was revoked, it would inevitably lead to his dismissal on October 6.
4. There was a case management discussion on 8^th March. At that stage the Claimant sought to amend the claim so as to add complaints of Disability Discrimination and four distinct grounds of Unfair Dismissal. These were that he had been unfairly dismissed contrary to Section 98 of the Employment Rights Act 1996, alternatively that the dismissal was by reason of trade union membership or activity and/or race and/or sex discrimination. In short, he sought to raise virtually every potential complaint within the lexicon of the employment lawyer which might be advanced in the circumstances of this case. It is to be noted, as Mr Perera who acted before us on behalf of the Claimant accepted, that it was not at this hearing suggested that any of these four dismissal claims were already before the Tribunal. The contention appears to have been that there was really no prejudice to the Respondent in allowing the amendments and they should be permitted. Ms Lewsey, who heard the case management discussion, refused to let the disability discrimination case go forward. As to the dismissal claims she said this:

"In relation to the claim of unfair dismissal this is made on four bases, section 98(4), trade union activities, race and sex. There is reference in the Originating Application to unfair selection for redundancy. The Chairman took into account that if she were to treat the particulars as a new claim presented on 9 March 2005 then the claim would be out of time and it would be the subject of a pre-hearing review to C determine in the case of the complaints of unfair dismissal under Section 98(4) and for trade union activities as to whether it was reasonably practicable for it to be presented within time and in relation to the claims of race and sex discrimination as to whether it was just and equitable to extend the time period. The Chairman ordered that the particulars presented should be treated as a new Originating Application registered and served on the Respondent and that the new Originating Application in relation to the four limbs of the complaint of unfair dismissal should be listed for a pre-hearing review before a Chairman sitting alone to determine whether the claims were out of time and whether it was reasonably practicable in the case of the claims under section 98(4) and for trade union activity or just and equitable in the claims of race and sex discrimination for time to be extended."

5. Both parties before me accept that Ms Lewsey did not apparently consider whether any of the unfair dismissal claims being advanced could fairly be said to be contained within the original claim.
6. On 29^th March, within the 14 day period for seeking a review, the Claimant sought a review of Ms Lewsey's ruling. It was specifically stated that the application was made under Rule 34 (3) (e) which permits a Tribunal to review certain of its decisions where the interests of justice require it. It was for the first time contended that the four dismissal related claims were already incorporated in the body of the original claim. Accordingly, it was suggested that there was no need for an amendment and no need, therefore, for any further hearing to determine whether those complaints were in time.
7. On 29^th March, Ms. Lewsey responded saying that she had no jurisdiction to review the interlocutory case management discussion. No appeal was lodged against that refusal to review and the matter next came on for a hearing following an earlier adjournment, on 7^th September 2005, before a different Chairman, Mr Solomons.
8. He was asked to reconsider Ms Lewsey's decision in which she had refused a review on the same grounds which had been advanced to her, namely that the complaints relating to dismissal were already within the claim lodged. It was contended that Ms Lewsey had been wrong not to hear the matter in the interest of justice. Mr Solomons refused to hear this application; he thought that Ms Lewsey had already determined this very issue against the claimant. He said this:

"It is clear from her Case Management Discussion Order that she was finding that the original claim presented in June 2004 did not include a claim for unfair dismissal."

On that premise (which as we indicate below seems to have been incorrect) he considered that the Claimant was effectively inviting him to be the Court of Appeal in relation to Ms Lewsey's decision. He said that this was "a power which I do not have and which I decline to exercise."

9. Mr Solomons then considered whether or not the claims were in time and, if so, whether time should be extended. He concluded that the discrimination claims on race and sex ought to be allowed to go ahead on the grounds that it was just and equitable to permit that. However, he refused to allow the other unfair dismissal claims to be pursued, namely that there was an unfair dismissal under Section 98(4) and an automatic unfair dismissal on grounds of trade union activities. He held that it was reasonably practicable for the Appellant to have lodged his unfair dismissal application within the 3 month time limit. He gave careful reasons for that conclusion. He recognised that at relevant time the Claimant had been suffering from stress, worry and that he was unfit for work at that stage. But he pointed out that the Claimant was able to deal with day to day correspondence, and in particular he referred to an e-mail which had been sent by the Claimant to his union representative on 17^th December 2004, which demonstrated that the Claimant knew both of the 3 month time limit and that he was well able to deal with any necessary correspondence. The chairman directed himself accurately as to the relevant test, namely whether it was reasonable feasible for the Claimant to have presented his complaint: see Palmer v Southend On Sea Borough Council [1984] ICR 372 at 385 per May LJ. He concluded as follows:

"… it is abundantly clear from all the evidence that at a stage well in advance of the expiry of the limitation period he was well aware of the importance of a claim being submitted within the limitation period and secondly that during that period of time he was entirely able to conduct written communications both with his union representative and with the Tribunal in relation to the first originating application".

10. Mr Hart seeks to challenge the decision of Mr Solomons on three grounds. First, he submits that he was wrong not to review Ms Lewsey's decision not to review her original order. He says Ms Lewsey in fact had the power to consider his application and that having refused to do so, Mr Solomons should have done so. He submits that had he done so the only proper conclusion would be that the claims for unfair dismissal would inevitably be found already to have been made in the original claim. Second, he submits that in any event the Appellant had lodged a grievance against the decision to dismiss him and that as a consequence of the Employment Act 2002 (Dispute Resolution) Regulations 2004, Regulation 15, the time limit for putting in a claim should be extended by a further three months. The significance of this is that his dismissal took effect on 6^th October 2004 and he had of course made his application for the new grounds to be included within a six month period from that date. This was not an argument that had been advanced before Ms Lewsey. I am told it was raised before Mr Solomons. He rejected it but did not specifically advert to it in his reasons. The third ground is that Mr Solomons wrongly exercised his discretion in refusing to extend time. It was suggested that the medical difficulties, the problems he was having in getting guidance from his union and the fact he was pursuing grievances, all should have weighed more strongly in his favour so as to cause the Chairman to take a different view of the application.
11. I will deal first with the last two grounds. They can be disposed of relatively quickly.

Did Mr Solomons err in law in refusing to extend time?

12. As to Mr Solomons' refusal to extend time, it is very well established that it is only in a clear case where there has been some plain misdirection or a decision which is obviously wrong that this court should interfere. I see no such failing in this case. The Chairman concluded that the Claimant could carry out ordinary day to day correspondence and that was a finding of fact he was plainly entitled to reach particularly in view of the December email. It is also pertinent to note that the Appellant did put in his claim to the Tribunal back in June, and he could have included these claims at that stage. Indeed, his case was that he had done so. It is difficult to see how it can be alleged that it was not reasonably practicable to lodge these claim in time.
13. In granting permission for this case to go to a full hearing, Mr Justice Langstaff had identified as a possible argument the contention that the Claimant had thought that his claims for unfair dismissal were already part of his first originating application and that this was a factor which ought to have been weighed in the balance when determining whether it was reasonably practicable for him to lodge those claims in time. I would accept that this would in principle be capable of being a relevant factor, amongst others. However, as Mr Perera was frank enough to admit, that was not what the Claimant had in fact understood. He made his application to amend to include these dismissal related grounds precisely because he thought they were not already included. It was not a case, for example, where some issue had arisen to cause the Tribunal to take the view that the claims had not already been advanced when the Claimant was submitting that they had been. So whatever merit there may be in the contention that this was a potentially relevant factor, it does not assist this Appellant in the circumstances of this case. The Chairman properly analysed the evidence and reached a cogent and proper conclusion.

Was time extended by the presentation of a grievance?

14. I then turn to consider the argument that because a grievance had been lodged, the period of time for submitting the application had in fact been extended pursuant to regulation 15 so that these applications had been lodged in time. The factual position here was that after the notice of redundancy had been issued, Mr Hart raised a grievance through his union on the 29^th June. This complained, inter alia, of selection on grounds of trade union membership and activity and race. Subsequently, on 28^th September, Mr Hart was sent a letter in which he was told that arrangements had been made for his departure on 6^th October in accordance with the original notice. On 4^th October he wrote a letter in response to that in which he raised a further grievance that the Respondent should not have implemented the termination at this stage. Mr Perera says that under Regulation 15, since he had lodged a grievance, the normal time limit was extended by three months, which is until six months after the effective date of termination.
15. Mr Tolley raises two answers to this. First, he relied upon reg. 18 which is as follows:

"These Regulations shall apply -

(a) in relation to dismissal and relevant disciplinary action, where the employer first contemplates dismissing or taking such action against the employee after these Regulations come into force; and

(b) in relation to grievances, where the action about which the employee complains occurs or continues after these Regulations come into force,

but shall not apply in relation to a grievance where the action continues after these Regulations come into force if the employee has raised a grievance about the action with the employer before they come into force".

He submitted that even if it can be said that the action continued after the regulations came into force on the 1 October 2004, nevertheless the grievance was first raised earlier in June when the claimant had first raised his complaint about his proposed dismissal with the employers. Mr Perera responded by submitting that there was a further grievance raised on the 4 October which repeated the earlier grievances and further complained that the dismissal ought not to be carried into effect. . This, he submitted, should be seen as a new grievance. I do not accept that merely repeating a complaint already made can amount to a fresh grievance. In my view the effect of regulation 18(b) was that the grievance raised here was not caught by these provisions.

16. There is a further hurdle facing the claimant. As Mr Tolley pointed out, the complaint is about dismissal and regulation 6(5) expressly provides that the relevant provisions relating to grievances do not apply "where the grievance is that the employer has dismissed or is contemplating dismissing the employee." The claimant submits that this does not apply where the grievance raises not only a complaint about a dismissal or proposed dismissal but also other matters which would constitute grievances within the rules. I do not accept that. Regulation 6(5) does not say that it applies where the grievance is only about dismissal or a contemplated dismissal, and there is no reason to limit its scope in that way. Moreover, it is clear from the structure of these regulations that dismissals are to be the subject of dismissal procedures; and it is plain that by regulation 18(a) the regulations relating to such procedures come into play only where the employer first contemplated dismissing the employee after the regulations came into force. That is not this case. So this ground of appeal fails.

Should Mr Solomons have revisited Ms Lewsey's decision?

17. I turn to the final ground of appeal. The starting point for these submissions is that Mr Solomons was wrong to take the view that he had no power to review the decision taken by Ms. Lewsey. As part of this argument, it is contended that Ms Lewsey herself was wrong to deny herself the power to review her own decision. She had not considered the point which the Claimant was seeking to raise, and she ought to have done so. As we shall see, "review" has a special meaning under the Employment Tribunal procedure rules. Mr Perera was really contending that Ms Lewsey and Mr Solomons should have used their powers under the rules to revisit Ms Lewsey's earlier decision. That requires some analysis of the relevant rule conferring powers and the circumstances in which the decision of a tribunal may be revisited, either by the same or another tribunal.

Discussion

18. The first question is whether Ms Lewsey's determination was one which could properly have been reconsidered at all, and if so, under which rule. The power for Tribunals or Tribunal Chairman to revisit decisions is contained in the current rules found in Schedule 1 to the Employment Tribunals (Constitution and Procedure) Regulations 2004. It is to be noted that the rules are structured so as to deal chronologically with the issues that may typically arise during the course of a claim. They regulate all stages of the procedure from starting a claim to judgment and including thereafter the power to review and the making of costs order.
19. In the course of dealing with a case, Tribunal Chairmen will typically make a variety of orders as part of case management. There is a general power to manage proceedings conferred by Rule 10. It gives very wide powers to a Chairman to manage proceedings not only to issue orders but also to vary or revoke orders that have already been made. The heading to Rules 10 to 13 is indeed "Case Management". The powers are very broad and Chairman can act not only on an application from the parties pursuant to rule 11, but also on his own initiative: see rule 12. It is obviously desirable that such rules should be as flexible as are necessary to ensure that preparation for the case proceeds smoothly and that the interests of justice are complied with.
20. Then in an entirely separate section, which is contained under a heading "Power to Review Judgments and Decisions", there are rules concerning the power to review default judgment (Rule 33) and other judgments and decisions (Rule 34). The concept of judgment is contained in Rule 28(1) and is as follows:

"(1) Chairmen or tribunals may issue the following -

(a) a "judgment", which is a final determination of the proceedings or of a particular issue in those proceedings; it may include an award of compensation, a declaration or recommendation and it may also include orders for costs, preparation time or wasted costs;


(b) an "order", which may be issued in relation to interim matters and it will require a person to do or not to do something.

21. The circumstances where judgments and decisions can be reviewed are identified in Rule 34 (1), which is as follows

"Parties may apply to have certain judgments and decisions made by a Tribunal or a chairman reviewed under rules 34 to 36. Those judgments and decisions are-

(a) a decision not to accept a claim, response or counterclaim;

(b) a judgment (other than a default judgment but including an order for costs, expenses, preparation time or wasted costs); and

(c) a decision made under rule 6(3) of Schedule 4;

and references to decision" in rules 34 to 37 are references to the above judgments and decisions only. Other decisions or orders may not be reviewed under these rules."

22. Rule 34 (3) then sets out the grounds and the only grounds on which decisions may be reviewed. It is as follows:

"Subject to paragraph (4), decisions may be reviewed on the following grounds only

(a) the decision was wrongly made as a result of an administrative error

(b) a party did not receive notice of the proceedings leading to the decision

(c) the decision was made in the absence of a party

(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or

(e) the interest of justice requires such a review."

There is a more limited power to review a decision not to accept a claim or response because the only grounds on which that can be done are those found in subparagraphs (a) and (e).

23. Rules 35 and 36 then set out the procedure to be adopted when determining whether a review should be held or not. Rule 35 deals with the application for review, and rule 36 with how the substantive review should be conducted if the application is accepted. In each case it is provided that the decision should be taken, if practicable, in the case of preliminary consideration of the application by the Chairman of the Tribunal which made the decision and, where a review has been granted, the decision should again be taken either by the Chairman or the full Tribunal, whichever made the original decision. If it is not practicable for these to act for some reason, in either of those situations, then the rules specify other persons who may be appointed to carry out the review. But the preference is for the matter to be considered by the same person or Tribunal that made the original decision. This is no doubt for the simple reason that it has made the determination and heard the case and it is in the best position to assess whether there is good reason to vary or revoke the order or decision that it made. This is, of course, quite different from the exercise of case management powers. In those circumstances matters are not required to be reserved to a particular Chairman at all, although sometimes that will be desirable. Different Chairman may make orders prior to a hearing in the course of a case developing.
24. In this case the decision which Ms Lewsey was asked to review was her decision that the grounds being proposed should be treated as a fresh originating application. This was plainly not a judgment falling within rule 34 (although the Claimant sought to argue to the contrary.) It was not the refusal to accept the claim; rather it was a decision that the four dismissal related claims were not already covered by the claim lodged and should be treated as fresh claims which should be subject to further consideration to determine whether they were in time.
25. The claimant submits that even if the review did not fall under the scope of Rule 34, nonetheless Ms Lewsey should have treated his application as one made under rule 11, seeking a new decision and a revocation of the previous order. There is no indication at all that she did that. Thereafter, it is said, if she refused to reconsider her decision then Mr Solomons should have done so. There is a continuing power to reconsider rulings under rule 10 and each of these chairmen should have exercised that power.
26. Was this the kind of decision that can properly be considered and varied under the rule 10 powers? The Claimant submitted that it was and relied upon a decision of Mr Justice Rimer in Onwuka v Spherion Technology UK Limited [2005] ICR 567. In that case a tribunal chairman refused an application by a claimant to amend his originating application to include a complaint of detriment in consequence of a public interest disclosure. There was an application to review that decision and a different chairman held that he had no power to review it under Rule 34 and he rejected a submission that the decision could, in any event, been reviewed under Rule 10. He held that the phrase "other decisions or orders may not be reviewed under these rules" meant that they could not be reviewed under any rules.
27. Mr Justice Rimer held that the Chairman had erred in this respect. The Judge dealt with the relationship between the case management powers and the powers of review. His approach was that there was no magic in the words "review". That merely meant that an order could be amended or revoked. That is precisely what a claimant is, or at least may be, seeking when an application is made under rule 11. Although the language is different, the effect of revoking or varying an order following an application under rule 11 is the same as occurs when a decision is reviewed under rule 34. He held that the chairman was wrong to conclude that the closing words of Rule 34 namely "other decisions or orders may not be reviewed under these rules" meant that they could not be reconsidered under any of the Rules contained in the regulations. The reference there to "these rules" the Judge held referred simply to Rules 33 to 36. Since it was being contended that there had been a material change of circumstances since the first decision, the Judge held that the chairman had misdirected himself and should at least have considered whether or not to vary the ruling.
28. I respectfully agree with Mr Justice Rimer that the fact that a decision or order cannot be considered under rule 34 does not prevent it being reconsidered under rule 10. I would respectfully observe, however, that it is misleading to refer to both a rule 10 reconsideration and a rule 34 review by the term "review." It is preferable to describe an application under rule 11 which seeks to vary or revoke a ruling already given as an application to reconsider an earlier decision or order, and to use the formal term "review" only for the applications made under rules 33 and 34. (Hereafter I shall merely refer to rule 34 because rule 33 deals only with the specific case of judgment in default.) If a case cannot be determined lawfully under rule 34, because it falls outwith its scope, that does not prevent the decision or order being amended or revoked under the exercise of the powers conferred by the case management rules. Conversely, if a case falls within the scope of rule 34, the power to review under that rule is an exclusive one. A review, in the strict and proper sense, cannot be carried out under any other rules, and I would respectfully differ from Mr Justice Rimer in construing the phrase "under these rules" found in rule 34 as meaning simply the particular rules applicable to review strictly so called. That is a conclusion that must follow if the concept of "review" is given the wide meaning of "revisit" attributed to it by Rimer J otherwise, as he pointed out, there could be no revisiting of ordinary case management decisions. But if "review" is treated as a term of art- as I think it should be- then the reference to "under these rules" can sensibly be taken to refer to the whole body of rules. Decisions falling outside rules 33 and 34 cannot be reviewed at all. I do not, however, think that Mr Justice Rimer was suggesting that a review in the narrow sense could be carried out under any other rules, but it was submitted in argument that his judgment was not wholly clear on that point. It is in my judgment plain that those matters which fall within the scope of rule 34 cannot in the alternative be reconsidered by a Chairman pursuant to Rule 10 or any other powers. That would plainly negate the purpose of having those rules and it would permit different Chairman to review decisions which the rules have sought to have determined only by the original Chairman or Tribunal (at least unless that is not practicable) and on specific identified grounds. Conversely, if the issue is one not falling within Rule 34 then it can, in principle, be reconsidered under Rule 10.
29. Does it follow that all decisions or rulings which are not caught by rule 34 are within the scope of rule 10? That raises a point of some importance about the scope of that rule. It purports to deal with the making, variation and revocation of "orders". There is a definition of order in rule 28, but that is cast in narrow terms. It provides that "an order ..will require a person to do something or not to do something". That plainly is much narrower than the range of case management decisions typically taken under rule 10, and the meaning of order in the latter rule must be wider. As Mr Justice Rimer pointed out in the Onwuka case, rule 10(2) specifically includes the giving of leave to amend (see rule 10(2)(q) and that does not order anyone to do anything. Indeed, decisions may be made at the case management stage that are neither orders in the narrow sense defined in rule 28, nor even permissions to do anything. This case provides an illustration; what the claimant was seeking- or at least would have been content with- was a ruling that a claim form already included a particular complaint. That would not in the usual way be described as an "order". It is simply a ruling; it may give rise to further applications which will seek orders, but in itself it is merely a ruling. The premise of the draftsman seems to be that all case management decisions will involve applications to seek, vary or revoke orders. Mostly they will, but not inevitably.
30. Notwithstanding the unsatisfactory language employed, I take the view that the term "order" in rule 10 should be construed so as to cover all decisions taken by a tribunal in the proper exercise of its case management powers, save where those decisions are subject to the review procedure in rules 33 and 34. In principle, tribunals ought to have power to reconsider all their decisions, whether they would naturally be described as "orders" or not. Whether it will be appropriate to do so in particular circumstances will be a different matter, and I consider that issue below. In any event, it seems to me that the decision sought here, namely a ruling as to the effect of the original claim form, is a decision which can properly be treated as an aspect of case management in that it sets the contours of the case and defines the obligations in relation to further particulars, disclosure of further information, and such matters. It would be unfortunate if decisions of this kind could not be revisited at all and had to be the subject of an appeal to the EAT, with the potential additional costs and delays.

Circumstances when case management decisions can be reconsidered.

31. Given that the decision of Ms Lewsey could in principle be revisited- there is, in other words, jurisdiction to do so- should it have been in this case? In theory there is no limit to the number of times that a tribunal can reconsider one of its case management decisions. As Mr Justice Keene pointed out in Maurice v Bettaware Ltd. [2001] ICR 14 at para 13, there are good practical reasons why as the nature of the case changes, so case management orders may need to be revisited. It would stifle effective case management and lead to endless appeals to this Tribunal were it otherwise. At the same time, in practice it is extremely rare for it to be appropriate to revisit an order so as to vary or amend it unless there has been some change of circumstance. In Goldman Sachs Services Limited v Montali 2002 ICR 1251 this Tribunal was faced with a case where a chairman had ordered that there should be a preliminary hearing of a particular issue relating to limitation, but on the day that that was to be commenced, the Tribunal constituted to hear that issue took the view that it was inappropriate for it to be heard as a preliminary issue but should be considered as part of the full hearing. The Tribunal reconsidered that issue on its own initiative. It was not suggested that the circumstances had changed in any way. The EAT (Judge Peter Clark presiding) held that the second Tribunal was in error. He accepted the submissions of the Appellant that the principles to be applied were equivalent to those which operate under the Civil Procedure Rules. It was held to be a wrong exercise of discretion and a failure to properly act in accordance with guiding legal principles for the second tribunal simply to substitute its view for the first. The EAT referred to the following observations of Laws LJ in Jameson v Lovis [2001] EWCA Civ 1264 at para 22.

"There are, as was submitted in the respondent's skeleton, clear and detailed procedures for bringing appeals against interlocutory orders. These are not mere technicalities. They exist to achieve finality and certainty within the processes of civil litigation. If they are ignored by litigants who prefer to air their procedural points all over again at a later case management conference and that kind of action was sanctioned by this court, the aims of the Civil Procedure Rules would be significantly undermined. We would have uncertainty and repetition, not clarity and finality. Of course if there were a true change of circumstances then in my judgment the flexibility which the CPR commend would plainly allow a change of view as to the procedural orders which should be made."

32. Observations to similar effect were made by Keene J in Morris v Betterware UK Limited [2001] ICR 14 at (para 22):

"…we are satisfied that the power to revisit a [case management] issue is not a power to be used in order to have second, third or fourth bite of the cherry, when there has been no material change in facts or in the law, nor is it a procedure to be used to enable a party to go, as it were, chairman shopping, moving from one chairman to another until it can find a chairman who will come up with a decision in his favour.

Similarly in the Onwuka case the EAT commented that although a tribunal had jurisdiction to revisit case management decisions, it would not ordinarily do so absent a material change in circumstances (para 35).

33. This is very important guidance, albeit that it is not a limitation found in the rules themselves. It is akin to the principle of issue estoppel whose effect is to prevent an issue which has already been determined in the final judgment of a court from being relitigated between the same parties. The bar is not absolute, however, but exceptions are limited. It will include where fresh evidence has emerged which could not reasonably have been adduced at the first trial: see Arnold v National Westminster Bank [1991] AC 93,108-109 per Lord Keith of Kinkel Decisions taken in the course of case management decisions will not generally fall within the strict principle of issue estoppel because they are usually not final decisions (although they might be, such as where they involve striking out a claim). Moreover, as Keene J pointed out in the Betterware case, they are not necessarily directed towards resolving issues raised directly between the parties but rather exercising the power to control its own procedures in the interests of justice. Even so, as he observed, the principles underlying that doctrine are applicable by analogy to decisions taken in the course of case management even where the doctrine is itself not strictly applicable.
34. There is, however, an important distinction to be drawn between a case where there has been a determination of the particular issue or argument which the party has already advanced and lost but wishes to run again before a fresh tribunal, and a case where a party wishes to advance an argument which ought reasonably have been deployed at the earlier hearing but was not. In the former case the argument in favour of finality is extremely powerful. The very issue has been decided after argument and the concern about "chairman shopping" referred to in Betterware is highly pertinent. The latter situation does not involve the principles of issue estoppel themselves, but rather the analogous doctrine known as the rule in Henderson's case (Henderson v Henderson (1843) 3 Hare 100.) That principle requires that a party should advance its whole case before a court and should not be allowed to return to court to advance arguments, defences or claims which could and should have been run at the first hearing. It is a doctrine based on the public policy and as Lord Bingham pointed out in Johnson v Gore Wood and Co. [2002] 2 AC 1 at 31, although it is distinct from issue estoppel, "the underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter." However, as the House of Lords held in that case, the question here is whether it is an abuse of process to allow the matter to be raised afresh. Whether it would be an abuse for fresh litigation to be pursued will depend on all the circumstances of the case; the mere fact that an issue could have been raised earlier does not necessarily make it abusive. The doctrine is not as rigid as issue estoppel.
35. The principle in Henderson's case applies to employment tribunals: see Staffordshire County Council v Barber [1996] ICR 379. That principle is concerned with final judgments rather than interlocutory case management decisions, but in my opinion the analogy is apt. Normally parties should be expected to run all the arguments relating to a particular issue, but even where they have been at fault in failing to do so, employment tribunals in exercising case management powers have some flexibility in revisiting decisions to consider wholly fresh arguments. In this context it is necessary to bear in mind that the overriding objective, set out in regulation 3, is to deal with the matter justly, and that includes expeditiously and fairly. That is an objective which a tribunal must seek to achieve in relation to the exercise of all the tribunal's powers. As this Tribunal pointed out in Sodexho v Gibbons [2005] IRLR 836 (HH Judge Peter Clark presiding) this has widened the circumstances in which a tribunal can exercise a review (in the strict sense) in the interests of justice. It seems to me that in an appropriate case- and no doubt such cases will still be exceptional, particularly if the point requires fresh evidence- it can justify a reconsideration of a case management decision where a party wishes to argue a point which it could have, but did not, pursue at an earlier hearing, even absent any change of circumstances. In practice, such situations will but rarely arise; and it is important to emphasise that this is not a principle which allows a party to seek reconsideration on the grounds that the issue was not argued properly, or that the representative did not do justice to it. In such cases the proper route is to appeal the decision. It is only applicable where a potentially significant argument was not advanced at all.
36. There is also some analogy also with the situation where the EAT will, albeit only in very exceptional circumstances, permit new points of law to be run on appeal which were not taken below: see Glennie v Independent Magazines (UK)Ltd. [1999]IRLR 719. It would be surprising if, in relation to interlocutory matters, employment tribunals did not have at least as extensive powers. Indeed, since case management arises at a much earlier stage in the proceedings, the merits of the case will not have been determined at all, and additional expenditure incurred as a result of an additional hearing may be met by an order for costs thrown away, there are good reasons why the discretion can properly be a little wider. I emphasise that in the usual run of cases the principle must nevertheless be that a party will be expected to run all its legal arguments on a particular matter at the one hearing. Parties will often plan their cases on the basis of the ruling or order made, and, absent a change in circumstances, it will often be unjustified to allow new arguments involving a change in the nature of that preparation. But exceptionally the overriding objective to deal with cases fairly will merit it.
37. Had Ms Lewsey been asked to reconsider her decision under rule 10, I am satisfied that she would have been fully entitled to do so here. There were four features present which in my judgment made this sufficiently exceptional to warrant a reconsideration. First the parties and the tribunal acted on the assumption that the claim for unfair dismissal by reason of trade union activities had not been made. No doubt the claimant wrongly thought that the notice of dismissal had to take effect before he could raise such a claim. The case is to some extent analogous to the decision of the Employment Appeal Tribunal in Williams v Ferrosan [2004] IRLR 607. In that case compensation was fixed at a remedies hearing on the assumption that the sums awarded would not be taxable. It was later discovered that they were indeed taxable. The employment tribunal refused to review the decision pursuant to what is now rule 34, and the EAT (Hooper J presiding) concluded that they had been wrong not to do so. It was accepted in that case that the matter could have been put right on appeal but the Tribunal commented that "using the review procedure to remedy the error saves expense and helps to ensure that the matter is dealt with." That was a review where there is an express power to review in the interests of justice; but if the overriding objective entitles a reconsideration to use rule 10 powers in the interests of justice –and I think that it must do-then similar considerations arise. Second, the decision was one of some significance to the claimant. It was likely to determine whether he could advance that particular claim at all. This is more far reaching than most case management decisions. Third, the only issue was whether, as a matter of construction of the claim form which was lodged, it was possible to say that the claim for dismissal for union activities had been included. There was no question of adducing new evidence which should have been called on the first occasion; the matter did not turn on evidence at all. Finally, the nature of the issue was such that the review would take a very short time indeed. It required simply a brief consideration of the claim that had been lodged.
38. I have no doubt that if the matter had been reconsidered then the amendment would have been allowed in so far as the claim relating to trade union activities was concerned; alternatively, the tribunal might simply have ruled that this particular claim had already been made and that no formal amendment was necessary. All the elements of the claim had been pleaded. Perhaps it was desirable to amend to put the matter beyond doubt; but all the claim lacked was the appropriate label. Of course, that was not so with the general unfair dismissal claim.

Applying the principles to this case.

39. I would therefore conclude that this was a case where had the issue been properly raised before them, either of these chairmen was entitled to revisit this issue on the assumption that the particular argument the claimant wished to advance had not been considered. However, the fact that the two Chairmen had jurisdiction to reconsider Ms Lewsey's order if the matter had been properly raised before them does not of course demonstrate that they committed any error of law in failing to do so. It is not altogether clear why Ms Lewsey thought it appropriate to require these proposed amendments to be treated as a fresh application rather than simply treating them as amendments, as the claimant sought. Had she adopted the latter approach I suspect that it would quickly have become clear that as far as the trade union activities part of the claim was concerned (but not the general unfair dismissal claim), this was not raising an entirely fresh claim but simply clarifying an existing claim.
40. As to the application for a review made to Ms Lewsey, that was put in terms of an application under rule 34. Ms Lewsey was right to say that it did not fall under that rule. No doubt had she on her own initiative chosen to consider it under rule 12, or to treat it as including an application under rule 11, she could have done so. But it would be wrong and unjust to say that she has made an error of law for not anticipating and dealing with a point not addressed to her: see Dimtsu v Westminster City Council [1991] IRLR 450.
41. In any event, the short point here, strongly made by Mr Tolley for the employers, is that her decision has never been the subject of an appeal. The appeal is against the decision of Mr Solomons. Did he make an error of law in not reconsidering the matter? In my judgment he was right not to do so, in so far as the request was whether or not he should carry out a fresh review under rule 34. Ms Lewsey had considered this and held that a review was not appropriate. She was in fact plainly right about that, but even if wrong, it was not for Mr Solomons to put her right.
42. If, however, he had been asked to reconsider under rule 10, then he ought at least to have considered whether it was appropriate to revisit Ms Lewsey's ruling or not, since that matter had never been determined by her. Had he done so then, for the reasons I have given, I think he could properly have resolved to reconsider her order in the interests of justice and, having done so, either have declared that the claim for unfair dismissal for trade union activities was already made, or have allowed the amendment to make that clear. The fact that there had been no change in circumstances would not have been a bar to such a ruling.
43. Reading his judgment, as the passage reproduced in para. 8 above makes plain, the reason why he was not willing to reopen the question was because he had formed the view that Ms Lewsey had concluded that the original claim did not include any unfair dismissal claim. That was a reasonable inference, and had it been correct then I have no doubt that he would have been right to act as he did. But both parties told me that in fact the point had not been raised and she had not expressed any views about that. Indeed, the employer's case before me was that the claimant was seeking to address a new point of law in his review, and that since there had been no change in circumstances, it would have in any event been inappropriate to use the rule 10 power. It was not that the point had already been considered and determined against the claimant. In short, the analogy, in so far as it is applicable, was with the rule in Henderson's case and not issue estoppel.
44. For this reason I find that Mr Solomons acted on a misapprehension of what had been decided by Ms Lewsey. Had he not done so, his decision suggests that he may well have been willing at least to reconsider the point on his own initiative. He had jurisdiction to do so. I must emphasise that he would not have been in error in failing to do so. As I have said, a chairman does not err in law in failing to deal with applications which could have been, but were not, advanced before him; and there was no specific application to Mr Solomons under rule 11. But his reasons suggest that but for his impression that Ms Lewsey had already determined the matter, he would have not automatically have thought it inappropriate to consider the possibility of revisiting her order. In these exceptional circumstances I would have remitted the matter to him to decide that issue.
45. However, when I heard argument on this matter, the substantive case was due to be heard in a matter of days, and the parties wished to know where they stood. They did not want to adjourn that hearing. Accordingly I heard submissions from both parties on the issue whether the original claim embraced this complaint. I did so in part because I was in any event in as good a position as the chairman to determine this matter. In so doing I was choosing to exercise the powers conferred on me by section 35(1) of the ETA 96 which in an appropriate case allows me to exercise the powers conferred on the Employment Tribunal itself. Such a case includes one where I am as well placed as the tribunal to determine the matter: see Bennett v London Borough of Southwark [2002] IRLR 408 (CA). I reconsidered the matter under rule 10, and amended the order made by Ms Lewsey to the extent that I allowed the amendment adding, for the avoidance of doubt, a complaint to the claim that the claimant was dismissed by reason of participating in trade union activities. (I would have reached the same result in relation to his claim for race discrimination but that has been allowed in any event since time has been extended.) I said that I would give reasons later, which I now do.
46. As I have indicated, this argument does not begin to run in relation to the general unfair dismissal claim. That was not foreshadowed in the original grounds at all, and it would have required fresh details and would have changed the nature of the case which the employer had to meet. It was far more than a mere labelling exercise. Mr Solomons justifiably did not extend time for that claim. The claimant could only succeed in including that ground if I had upheld either of the other two grounds of appeal.

Conclusion.

47. It follows that the appeal succeeds to the limited extent of allowing the claimant to pursue before the tribunal his complaint that his dismissal was automatically unfair by reason of his trade union activities.