Ms W R Davis v Wren Davis Ltd and Others: 3310578/2023
EMPLOYMENT TRIBUNALS
Case No 3310578/2023
Between
Ms W Rose DavisClaimant(1) Wren Davis Limited (2) Virginia Anne Deradour (3) James Victor Wren DavisRespondentDate 8 August 2025
JUDGMENT
[1]The Claimant’s application for a costs order against the Respondents succeeds.[2]The Respondents are ordered to pay the Claimant’s costs in the amount of £2,400.
REASONS
[1]I held a preliminary hearing in this case on 18 June 2024. The purpose of the hearing was to decide the Respondents’ application to file a Response out of time and whether the Draft Response and Grounds of Resistance would be accepted.[2]At that hearing, I ordered that if the Claimant intended to make an application for costs in respect of the preliminary hearings held on 23 April 2024 and 18 June 2024, the application was to be made by 19 July 2024. The application was to state whether the Claimant wished the application to be determined on the papers or whether a further separate hearing was being requested to determine the costs application. The Respondent was advised that if the Claimant made an application, any response was to be received by 2 August 2024, and the response was to indicate if the Respondent would prefer the application be dealt with on the papers or whether a separate further hearing was requested.[3]On 19 July 2024, the Claimant made an application for costs in respect of the costs incurred at the preliminary hearings held on 23 April 2024 and 18 June 2024.[4]Unfortunately, there was a very substantial delay in the Claimant’s costs application being sent to me. I received a copy of the application for the first time on 19 June 2025.[5]When I received the papers, I mistakenly understood that the Respondents had until 2 August 2025 to respond to the Claimant’s application. Further papers were sent to me by the Tribunal on 6 August 2025, at which time I realised the deadline for the Respondents to respond to the application was 2 August 2024, and there had been a delay of nearly a year in the papers being sent to me.[6]I was informed by the Tribunal on 6 August 2025 that the Respondents had not submitted a response to the Claimant’s application by the deadline of 2 August 2024.[7]I sincerely apologise to both parties for the delay in this case. The background to the application[8]The Claimant was employed by the First Respondent from around 1973 to the date of her resignation on 27 March 2023. The Respondent is a family owned and run business. The Second and Third Respondents are the Claimant’s brother and sister. The Claimant brings claims of automatic unfair constructive dismissal under section 103A of the Employment Rights Act and ordinary unfair constructive dismissal. She also alleges she was subjected to detriments on grounds of having made a protected disclosure or disclosures.[9]The Claimant resigned on 27 March 2023. In respect of each Respondent, she contacted ACAS for early conciliation purposes on 15 June 2023 and the certificates were issued on 27 July 2023. On 24 August 2023, the Claimant submitted her Claim Form.[10]On 2 October 2023, the Claim Form was sent to the Respondents. The Respondents were required to submit a response by 30 October 2023.[11]On 30 October 2023, the Second Respondent emailed the Tribunal. The email said, “Please find attached documents for case 3310578/2023 for the First, Second and Third Respondents to support the case. I failed to be able to attach the said documents to our online response. Should any documents be missing please email.” The Respondents did not have legal representation at this stage, although they clearly had instructed solicitors previously because the claim details that the Claimant and the Respondents had instructed separate solicitors’ firms. Despite the email of 30 October 2023 being a crucial email for the Respondent’s application to extend time, it was not in the bundle for the preliminary hearing on 18 June 2024 and had to be obtained during the hearing.[12]The response that was submitted on 30 October 2023 was not on the prescribed form. It would appear the Respondents had taken the information that needed to be submitted on the prescribed Response Form and cut and paste the questions and answers into a word document at the point at which when filling in the form online they were asked to check their answers. They also sent in a document titled “Referring to the Claim form” which was intended to act as the Grounds of Resistance, and a large number of other documents, which appears to be evidence that the Respondents want to rely on.[13]On 2 November 2023, the Second Respondent emailed the Claimant’s solicitor the same documents they had sent to the Tribunal.[14]On 2 January 2024, the Claimant’s solicitors called the Employment Tribunal for an update about the case. They were told the Respondents had filed a response that was in the wrong format.[15]On 25 February 2024, the Employment Tribunal informed the parties that no response had been received. The letter sent to the parties stated, “Under rule 21 of the above Rules, because you have not entered a response, a judgment may now be issued.” On the same day, a case management hearing was listed on 23 April 2024.[16]On 26 February 2024, the Second Respondent telephoned the Tribunal. She then sent an email which noted: “After speaking with you just now please can I have a short confirmation that you have our defence and counter claim documents regarding case 3310578/2023 and that the letter claiming, “No response received” is retracted.”[17]The following day, on 27 February 2024, the Respondents were emailed a copy of the correct response form by the Employment Tribunal. The email noted: “When you rang yesterday, we confirmed that we has received a response from you. However upon looking at the response, it has not been presented in the required format and therefore has not been processed by the Employment Tribunal. Please find attached the required form that needs to be completed by you. The one form can be used for all three respondents so long as you indicate that on the form or in the body of the email.”[18]On 29 February 2024, the Second Respondent sent the Tribunal a response form, using the prescribed form. However, the front page was blank. It did not contain the Claimant’s name or the Respondents’ details. Other parts of the form were completed. In the box for representation, the Respondents set out Mr Uddin’s details. Counsel for the Respondents, Mr Uddin said in the preliminary hearing on 18 June 2024 that he was not formally instructed at that stage. The Respondents attached the Grounds of Resistance (the document titled, “Referring to the Claim form”) again. The Respondents did not seek an extension of time to file a response.[19]On 2 March 2024, the Respondents sent a further Response, which this time did contain the Respondents’ name and address. The Respondents did not seek an extension of time to file a response.[20]On 23 April 2024, the parties attended a preliminary hearing that was held by Employment Judge Postle. EJ Postle had a copy of the file, but the file did not contain a response. Mr Uddin told the judge that the Respondents had entered Grounds of Resistance on 30 October 2023. EJ Postle noted that there was nothing on the file to suggest this was the case. He recorded in his Record of the Preliminary Hearing that he was not prepared to enter judgment under Rule 21 and nor did he have sufficient evidence available to him on which to decide any application to extend time, although I note that no application had been made prior to the hearing.[21]EJ Postle recorded in his Record of the Preliminary hearing that Mr Uddin said that an ET3 had been served on 29 February 2024 and that it was Mr Lewis for the Claimant who said the Respondents would need to apply for an extension of time. As a result, EJ Postle listed a further preliminary hearing on 18 June 2024 to determine the application. He ordered the Respondents to make an application to extend time by 7 May 2024. The Claimant was ordered to provide their objections by 21 May 2024. It was noted if the application was successful the judge conducting the preliminary hearing would then make further case management orders.[22]In compliance with the orders, the Respondents sent in submissions. In the submissions it was suggested that the Respondents had in fact acted in compliance with the Tribunal Rules, even though the Response was not submitted on the prescribed form. The Claimant’s counsel submitted a response to the application which set out why the Claimant opposed the Respondent’s application.[23]At the preliminary hearing on 18 June 2024, I pointed out to Mr Uddin that I was concerned that I did not have before me a Response form which complied with the Tribunal Rules. There was then some further delay as Mr Uddin sought to find out if a different version of the Response had been sent to the Tribunal by the Respondents. Mr Uddin then emailed into the Tribunal an email which had been sent to the Tribunal by the Second Respondent on 2 March 2024, which contained a completed Response Form and the Grounds of Resistance (the document titled “Referring to the Claim form”). This version of the Response Form had been completed and did contain the Claimant’s name and the Respondents’ details. It was regrettable that the Respondents had not included these versions of the documents in the bundle for the preliminary hearing for 18 June 2024. The Response that was sent on 2 March 2024 was not submitted with an application to extend time.[24]At the preliminary hearing on 18 June 2024, I heard oral submissions from the parties. However, as a considerable amount of time was spent obtaining the relevant documents, the hearing went over the 2 hours that it was listed for in order to allow the parties to conclude their submissions. I was therefore not able to inform the parties of my decision, and I was not able to conduct any case management. As a result, I listed the matter for a further preliminary hearing for case management on 25 July 2024, for 3 hours. I indicated to the parties that if the Respondent’s application was not successful the hearing would be converted to considering whether a Judgment under Rule 21 could be entered.[25]After the hearing the parties were informed that I had decided to allow the Respondents application. As a part of my decision, I made the following observations (although note I have changed some of the dates which mistakenly referred to 2023 to correct them to 2024): “The Respondents’ explanation as to why an extension of time was required was that the Second Respondent believed she had submitted Responses on behalf of all the Respondents within the time limit. During the hearing, I was provided with a copy of the email which showed the Second Respondent had sent an email to the Tribunal on 30 October 2023. I therefore accepted that the documentary evidence indicated that although the Second Respondent did not submit the Responses using the prescribed form, she did not know at the time that she was not complying with the Tribunal Rules. When the Respondents were advised on 25 February 2024 that the Tribunal had not received a response that was on the prescribed form, the Respondents then submitted a Response (using the correct form) on 29 February 2024, although it did not provide all the necessary information, as the Respondents’ name and address was missing from the first page. The Respondents then sent a further Response on 2 March 2024, which did contain the Respondents’ name and address. The Response did not however contain an application to extend time. Even once Mr Uddin was instructed for the preliminary hearing on 23 April 2024, no application to extend time was made by the Respondents. As a result, the hearing on 23 April 2024 did not move the case any further forward. Even when directed to make an application, the Respondents did not ensure all the relevant documents were in the bundle for the hearing on 18 June 2024, which has caused further delay and put the Claimant to further expense as the hearing on 18 June 2024 was not able to deal with case management issues. Overall, I found that the Respondents did have a good explanation for the initial delay in responding to the Claimant’s claim. The Respondents wrongly believed they had responded in time and were not aware they had not used the correct format for the response. However, I did not find the Respondents had a good explanation for the further delay once they were informed that they had not used the correct format to respond, and I was not given an explanation as to why an application to extend time was not made earlier. It would appear the reason why the application was not made earlier was that the Respondents mistakenly believed no application was needed as they considered they had complied with the Rules on 30 October 2023, even though the Respondent had not used the correct form.” The Claimant’s application for costs[26]On 19 July 2024, the Claimant made a costs application against all three Respondents under Rule 76(1)(a) of the Employment Tribunal Rules 2013 (now Rule 74(2) in the 2024 Rules) on the basis that the Respondents had acted unreasonably in the manner in which they had conducted the proceedings.[27]The Claimant argued: a) The Respondents had no good explanation for their failure to make the Extension Application between 25 February and 7 May 2024. The Respondents had been informed by the Employment Tribunal on 25 and 27 February 2024 that their response of 30 October 2023 was defective such that they could not reasonably have believed their response to have been valid. Nevertheless, the Respondents only made the Extension Application on 7 May 2024 after being ordered to do so by the Employment Tribunal. b) If the Respondents had checked the Rules, they would have realised that their response of 30 October 2023 was defective and that they needed to make an Extension Application. c) Although it remains unclear when exactly Mr Uddin was instructed, the Respondents were represented by Mr Uddin prior to 7 May 2024. Mr Uddin holds himself out both as a specialist employment practitioner and as having 17 years of litigation experience (initially as a solicitor advocate from 2007). Mr Uddin cannot reasonably have been unaware that the response of 30 October 2023 was defective and that the Extension Application was necessary. d) It was unreasonable for the Respondents to make the Extension Application as late as 7 May 2024. If the Respondents had made the Extension Application in good time before the Preliminary Hearing on 23 April 2024, it could have been dealt with during that Preliminary Hearing along with case management. Instead, the Respondents delayed more than 2 months. The case still required case management after 18 June 2024 hearing and as a result a third Preliminary Hearing has been listed for this on 25 July 2024. Moreover, had the Respondents made their application on or around 25 February 2024, the Claimant would have had significantly less reason for resisting an extension such that the costs of the Extension Application might have been avoided. e) With regards to the hearing on 18 June 2024, the Respondents spent a considerable amount of time looking for documents during the Preliminary Hearing. As a result, the Tribunal was unable to inform the parties of its decision or conduct any case management. If the Respondents had properly prepared for the Preliminary Hearing on 18 June 2024, case management orders could have been made as envisaged by paragraph 1.3 of the Orders from the previous preliminary hearing. This has led to a further Preliminary Hearing being listed for case management on 25 July 2024. f) It was incumbent on the Respondents to prepare their Extension Application properly. However, the Respondents failed to(i) attach a completed ET3 to the Application;(ii) put together a bundle with the necessary documents;(iii) respond to the Claimant’s representatives when contacted about the bundle; or(iv) have the relevant documents to hand during the Preliminary Hearing. This was unreasonable conduct. Costs order sought[28]The Claimant has applied for an order in the amount of £5,826.62. £2089.11 is sought for a Grade A and Grade D solicitors work, namely documents reviews and correspondence. £750 is sought for Counsel’s attendance at the hearing on 23 April 2024, £1,337.51 in relation to counsel’s time in relation to submissions for strike out, £1,200 in relation to Counsel’s fees for attendance at the preliminary hearing on 18 June 2024, and £450 in relation to Counsel’s fees for preparing the costs application. Respondents’ response[29]I have been informed the Respondent did not submit a response to the Claimant’s application for costs by the deadline of 2 August 2024.
The relevant law
[30]Rules 73(1)(a) and 74(2)(a) of the Tribunal Rules 2024 gives employment tribunals the power to make a costs order against one party to proceedings to pay the costs incurred by another party on the grounds that a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing or conducting of proceedings or part thereof.[31]Under Rule 75, a party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. The Tribunal must not make a costs order or a preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order).[32]The Tribunal Rules impose a three-stage test: first, the tribunal must ask itself whether a party’s conduct falls within Rule 74(2)(a). If so, secondly, it must go on to ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against that party. The third stage is the determination of the amount of any award.[33]In Yerrakalva v Barnsley Metropolitan Borough Council and anor [2012] ICR 420, CA, the Court of Appeal stated that costs in the employment tribunal are still the exception rather than the rule. It commented that the tribunal’s power to order costs is more sparingly exercised and is more circumscribed than that of the ordinary courts, where the general rule is that costs follow the event, and the unsuccessful litigant normally has to foot the legal bill for the litigation. In most cases the employment tribunal does not make any order for costs. If it does, it must act within rules that expressly confine the tribunal’s power to specified circumstances — notably, unreasonableness in the bringing or conduct of the proceedings. The tribunal manages, hears and decides the case and is normally the best judge of how to exercise its discretion.[34]In Yerrakalva, the Court of Appeal stated that costs should be limited to those ‘reasonably and necessarily incurred’. Furthermore, the amount of loss will not necessarily be determinative, since a tribunal may take into account other factors, such as the means and the conduct of the parties. The Court of Appeal confirmed that, in deciding whether to make a costs order, a tribunal does not have to determine whether or not there is a precise causal link between the unreasonable conduct in question and the specific costs being claimed. Nevertheless, that was not to say that causation was irrelevant when deciding the amount of costs. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it, and what effects it had.[35]The Court of Appeal also held in Lodwick v Southwark London Borough Council [2004] ICR 884, CA that it remains a fundamental principle that the purpose of an award of costs is to compensate the party in whose favour the order is made, and not to punish the paying party.[36]Under Rule 82, a tribunal may have regard to the paying party’s ability to pay. A tribunal is not obliged by Rule 82 to have regard to ability to pay but is permitted to do so.[37]In Howman v Queen Elizabeth Hospital Kings Lynn EAT 0509/12, the EAT commented that any tribunal when having regard to a party’s ability to pay needs to balance that factor against the need to compensate the other party who has unreasonably been put to expense. The former does not necessarily trump the latter, but it may do so.[38]In AQ Ltd v Holden [2012] IRLR 648, EAT, the EAT stated that the threshold tests governing the award of costs or a preparation time order in what is now rule 74(2) of the Tribunal Rules 2024 are the same whether a litigant is or is not professionally represented, but that the application of those tests should take this factor into account. An employment tribunal cannot and should not judge a litigant in person by the standards of a professional representative. The Tribunal’s decision Stage 1: Did the Respondents act unreasonably?[39]I accept the submissions made by the Claimant in the application for costs that the conduct of the Respondents, and/or their representative, was unreasonable in two respects: 1) The failure to make an application for an extension of time to submit a response prior to the preliminary hearing on 23 April 2024. 2) The failure to take adequate steps to prepare for the hearing on 18 June 2024.[40]At the preliminary hearing on 18 June 2024, the Respondents did not have a good explanation for why they had not made an application for an extension of time prior to the hearing on 23 April 2024. The Respondents had been informed by the Tribunal on 27 February 2024 that they had used the wrong form. On 29 February 2024, the Respondents emailed the Tribunal a copy of the correct form but incorrectly completed. However, Mr Uddin was referred to in the legal representative section of the form. On 2 March 2024, a correctly completed form was submitted, which again referred to Mr Uddin as the Respondents’ legal representative. Mr Uddin is recorded as having said to Employment Judge Postle in the Record of a Preliminary Hearing that the Respondents had entered Grounds of Resistance on 30 October 2023. He also said an ET3 was served on 29 February 2024. It would seem apparent from what was recorded by Employment Judge Postle that Mr Uddin had not appreciated that the Respondents needed to make an application for an extension of time under the Employment Tribunal Rules. The hearing was not effective, and a further hearing was scheduled instead.[41]The failure to make an application to extend time prior to the preliminary hearing on 23 April 2024 was then compounded by the failure to properly prepare for the hearing on 18 June 2024. Mr Uddin did not communicate with the Claimant’s representatives to produce a bundle for the hearing. As a result, when the hearing started on 18 June 2024, I was being asked to decide an application to allow the Respondent’s application but without the correct copy of the ET3 which the Respondent sought to be allowed an extension of time to submit. I also was not provided with a copy of the email sent to the Tribunal on 30 October 2023. The amount of time wasted obtaining these documents in the hearing meant that not all the necessary decisions and directions could be made in the hearing of 18 June 2024. Mr Uddin did not have the documents readily to hand and so there was unnecessary additional delay obtaining the documents from his clients and having them sent to the Tribunal. As a result, a third preliminary hearing had to be listed.[42]I accept the Claimant’s argument that if an application to extend time had been made before the hearing on 23 April 2024, that application could have been determined at that hearing and case management directions could have been made. As that was not done, and as the Respondent did not prepare properly for the hearing on 18 June 2024, three preliminary hearings were required.[43]I find that the Respondents acted unreasonably in failing to make an application to extend time before 23 April 2024 and acted unreasonably in failing to adequately prepare for the hearing on 18 June 2024, by ensuring all the relevant documents were in the bundle for the hearing. Stage 2: Should I exercise my discretion to award costs?[44]The Respondents were represented by Mr Uddin at both hearings. At neither hearing was the reason for the delays and the failure to adequately prepare explained. There has been no response to the Claimant’s application for costs. Therefore, even though the Respondents have been given an adequate opportunity to respond to the Claimant’s application, they have not done so.[45]If the Respondents had not been legally represented, then the failure to take the steps set out above would have been understandable. However, they had the benefit of being represented by counsel.[46]As no response has been submitted by the Respondents, I am unable to take into account any submissions regarding the Respondents ability to pay an award of costs.[47]I have born in mind that costs are the exception and not the norm, but in this case the Claimant has unnecessarily been put to the expense of paying counsel to attend three preliminary hearings on her behalf. I am unable to weight this fact against the reasons given by the Respondents because I have not been given any reasons by the Respondents. As a result, I have decided it would be appropriate to exercise my discretion to award costs in this case to compensate the Claimant for the losses she has incurred unnecessarily. Stage 3: How much should be awarded?[48]While the Court of Appeal in Yerrakalva v Barnsley Metropolitan Borough Council and anor made it clear that a tribunal does not have to determine whether or not there is a precise causal link between the unreasonable conduct in question and the specific costs being claimed, in order to make an award that is proportionate and fair, I consider that it is appropriate to restrict the award of costs to those that were unreasonably incurred. In other words, the Claimant has been required to pay for counsel to attend three preliminary hearings, when only one should have been necessary. Further she has incurred the costs of paying her counsel to apply for costs for two unnecessary hearings. I consider it is therefore appropriate to award her the costs incurred for counsel’s attendance at two preliminary hearings, and for the preparation of the costs application.[49]I do not consider it is appropriate to require the Respondents to pay the Claimant’s solicitors costs for reviewing paperwork or correspondence, or counsel’s costs for drafting submissions seeking to prevent the extension of time being granted, as I consider it is likely that these costs would have been incurred even if the Respondents application for an extension of time had been made prior to the hearing on 23 April 2024, and the Respondents had been properly prepared for the preliminary hearing. I have not been provided with a more detailed breakdown of the solicitors’ costs which indicates otherwise.[50]As a result, I am making a costs award for counsel’s attendance at the two preliminary hearings and for the preparation of the costs application, which comes to £2,400. Approved by:
Introduction
[1]On 8 August 2025, I upheld the Claimant’s application for costs and awarded the Claimant costs in the amount of £2,400. The judgment was sent to the parties on 22 August 2025. In the judgment, I recorded that I had been informed that the Respondents had not submitted a response to the Claimant’s application for costs.[2]On 4 September 2025, the Respondents applied for the costs judgment to be reconsidered on the basis that the Respondents had in fact submitted a response to the Claimant’s application for costs ahead of the deadline. A copy of the submissions was provided with the application for reconsideration.[3]The submissions reiterated an argument made previously by counsel for the Respondents, whereby he appeared to seek to argue that the Respondents had in fact submitted a Response on the prescribed form within 28 days, and that the Tribunal had failed to issue a notice of rejection.[4]In the submissions, counsel for the Respondents set out that the bundle for the preliminary hearing had been produced by the Claimant’s solicitor without consulting the Respondents and that was why documents were missing. It was argued the Tribunal would not have been able to make case management orders at the hearing on 18 June 2024 because there was the issue of the extension of time to be decided.[5]The submissions set out that the Respondent had no view on whether the application for costs should be decided on the papers or at a hearing. The relevant Rules and case law[6]Rules 68 to 71 of the Employment Tribunals Rules of Procedure 2024, set out the procedure for tribunals to reconsider judgments: Principles 68. -(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so.(2) A judgment under reconsideration may be confirmed, varied or revoked.(3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion. Application for reconsideration 69. Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of— (a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or (b) the date that the written reasons were sent, if these were sent separately. Process for reconsideration 70. - (1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application.(4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice.(5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application. The interests of justice[7]Under Rule 68(1), a judgment will only be reconsidered where it is ‘necessary in the interests of justice to do so’. A Tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’ as per Rule 3.[8]In Outasight VB Ltd v Brown [2015] ICR D11, EAT, Her Honour Judge Eady QC accepted that the wording ‘necessary in the interests of justice’ allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’.[9]In Stevenson v Golden Wonder Ltd [1977] IRLR 474, EAT, Lord McDonald said (regarding review provisions under an earlier version of the rules) that they were ‘not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before’.[10]In Trimble v Supertravel Ltd [1982] ICR 440, EAT, Browne-Wilkinson P stated, “If the matter has been ventilated and properly argued [at the original hearing] then errors of law of that kind fall to be corrected by this appeal tribunal'. The EAT in that case emphasised that the reconsideration procedure is there so that where there has been an oversight or 'some procedural occurrence' such that a party can be said not to have had a fair opportunity to present their argument on a point of substance, they can bring the matter back before the tribunal for adjudication.[11]In Ebury Partners UK Ltd v Acton Davis [2023] IRLR 486, EAT, the EAT noted that while it may be appropriate to reconsider a decision where there has been a procedural mishap meaning that a party has been denied a fair and proper opportunity to put his or her case, reconsideration should not be used to correct a supposed error made by the tribunal after the parties have had such an opportunity. This is particularly the case where the error alleged is one of law which is more appropriately corrected by the EAT. The Reconsideration procedure[12]Rule 70 of the Tribunal Rules 2024 sets out the procedure that an employment tribunal will follow upon receipt of an application for reconsideration.[13]Under Rule 70(2), if the tribunal considers that there is no reasonable prospect of the original decision being varied or revoked, the application will be refused, and the tribunal will inform the parties accordingly.[14]In Shaw v Intellectual Property Office UKEAT/0186/20 (9 July 2021, unreported) HHJ Auerbach described this as the 'sift' stage of the reconsideration application, akin to the sift process which is applied to appeals to the EAT. If on this sift it is held that there is no such reasonable prospect, the application will be refused, and the tribunal will inform the parties accordingly. But if the application crosses this threshold, the second stage is a hearing to determine the application, unless a hearing is not necessary in the interests of justice.[15]In TH White & Sons Limited v Ms K White UKEAT/0022/21 (26 March 2021, unreported), it was held that it will be an error of law to skip the first stage and move straight to the second stage. Conclusion The ‘sift’ stage – Rule 70 (2)
Conclusion
[16]The Respondents’ application for reconsideration is refused as there is no reasonable prospect of the judgment being revoked or varied.[17]I accept this is the type of case where it may have been appropriate to have reconsidered my decision. I reached the decision to award the Claimant costs on 8 August 2025 believing the Respondents had not submitted a response to the Claimant’s costs application, when in fact they had. However, now that I have seen and read the Respondent’s submissions, I have concluded even if I had been aware of those submissions, I would have still reached the same conclusion.[18]The decision to award costs was based on the Respondent’s unreasonable conduct in two respects. I found that the Respondents acted unreasonably in failing to make an application to extend time before 23 April 2024 and acted unreasonably in failing to adequately prepare for the hearing on 18 June 2024, by ensuring all the relevant documents were in the bundle for the hearing.[19]The failure to make an application to extend time prior to 23 April 2024 is not addressed at all in the Respondents’ submissions. Instead, the Respondents’ counsel erroneously continued to argue that they had in fact submitted a Response in time. The only relevant point made in the submissions in respect of the failure to adequately prepare for the hearing on 18 June 2024 was that the Claimant’s solicitor had produced the bundle for the preliminary hearing without the Respondents input. That does not explain why the Respondents had not adequately prepared for the hearing themselves. They had not produced a bundle. It was not suggested they sought to liaise with the Claimant’s solicitor about what should be in the bundle. It was the Respondents application. The majority of the hearing time was wasted obtaining documents from the Respondents, which were crucial for their application to extend time.[20]On this basis, I have concluded that even if I had received the submissions sent in by the Respondents, I would have still reached the same decision regarding the Claimant’s application for costs. Therefore, it is not in the interests of justice to reconsider the judgment. There is no reasonable prospect of the judgment being revoked or varied and therefore the Respondents’ application for reconsideration is refused.[21]In reaching this decision, I have had regard to the Claimant’s interests and the public interest requirement that there should, so far as possible, be finality of litigation. Approved by: