Although tribunals have the power to reconsider a decision, they must take into account whether it was “necessary in the interests of justice” to do so. The EAT held in Ebury Partners UK Ltd v Acton Davis that not only had the judge failed to carry out that test, he had gone off “on a frolic of his own” by engaging in a reconsideration of the case generally.
Basic facts
Mr Acton Davis had a contract under which he had a discretionary right to commission, representing a significant component of his pay. When he was seconded to work in Canada for a year in November 2017, the company issued a “side letter” to his contract stating that he would continue to receive commissions on UK accounts. Clause 4c said that the terms of the letter would initially apply for 12 months but would then continue on a rolling basis, although clause 4e referred to “this one year of secondment”.
In May 2019, Mr Acton Davis was told that his basic salary was going to be increased but that he would no longer receive commission. Although he made clear he was not happy about the change, he did not take the matter further at that point. However, after receiving his June pay slip which showed no commission at all, he resigned claiming that he had been constructively dismissed because of a breach of his express contractual terms and/or the implied term of trust and confidence. For its part, the company argued that the side letter had explicitly stated it was for a fixed term allowing them to change his remuneration package after it expired.
Tribunal decision
Noting that the main contract stated that commission was discretionary and that the side letter ceased to have effect after 12 months, the judge held that there had not been a breach of any of the express terms of the contract when the various documents were viewed in their “totality”. As Mr Acton Davis had failed to put forward any counter-proposal after the meeting with his employer in May 2019, the judge concluded that there had not been a breach of the implied term of trust and confidence either.
Rather than appealing to the EAT, Mr Acton Davis applied for a reconsideration of that decision on the basis that neither party had argued that the relevant provision in the side letter only applied for 12 months.
Although he rejected the argument about the side letter, the judge decided to reconsider the case generally, concluding that the company had indeed breached the implied term of trust and confidence in the way they had withdrawn commission payments. The company appealed arguing that the judge should not have carried out a reconsideration as that was not what he had been asked to do; while Mr Acton Davis cross-appealed against the judge’s conclusion on the side letter.
EAT decision
Allowing the appeal, the EAT held that it was not in the interests of justice for the judge to reconsider his decision, not least because Mr Acton Davis could and should have presented arguments on the proper construction of his contract at the original hearing. Although there was an arguable case to put forward as to whether the judge had interpreted the contract correctly, the way to challenge that was by way of appeal to the EAT, not to ask for a reconsideration.
Finally it held that there was no basis for the judge to reconsider whether there was a breach of the implied term as this was not part of the application for reconsideration. It criticised the judge for indulging in what it called a “frolic of his own” re-deciding the case on a new basis for which no one had argued on the reconsideration.
Comment
This case is about the correct tribunal procedure and will have limited impact on union reps and members in their day-to-day duties. However, it does serve as a reminder that it is important to make clear and supported arguments at an early stage, whether that is at tribunal or at internal meetings, for example grievance and disciplinary hearings.
Similarly, a rep who is making an application to the tribunal (or a request to an employer) should be clear about what they want to be considered and what they want as an outcome.
If the arguments and evidence are not put in front of the tribunal judge/panel then there is limited scope for it to reconsider the case. Generally, an appeal would need to be made to the EAT, which can be a lengthy and potentially costly process.