Employment Judge Embarked on ‘Frolic of his Own’ – EAT Ruling

Employment judges may reconsider their initial conclusions on a case, but that does not give them licence to embark on a wholesale change of mind on the basis of arguments that have not been presented to them. The Employment Appeal Tribunal (EAT) made that point in finding that an employment judge went on a frolic of his own.

The case concerned a senior employee of a global company who was seconded on a short-term basis to run its operations in Canada. After his commission payments – which in the past had represented the majority of his remuneration – were stopped, he resigned and launched Employment Tribunal (ET) proceedings.

Following a hearing, the ET found that his contractual entitlement to commission had expired 12 months into his secondment. Any commission payments he received thereafter were at the company’s discretion. There had been no fundamental breach of his employment contract and the employment judge rejected his complaints of constructive unfair and wrongful dismissal.

After subsequently reconsidering the matter at the employee’s behest, however, the judge reversed that outcome and upheld both complaints. He found that the company had breached the term of trust and confidence implied into the employee’s contract by the manner in which it withdrew his commission payments.

In upholding the company’s challenge to the ET’s decision, the EAT found that the judge had engaged in a frolic of his own in effectively rewriting several paragraphs of his original judgment. At the reconsideration hearing, neither side had presented argument on the point that the judge treated as decisive.

Given the public interest in the finality of litigation, the EAT found that he should not even have embarked on the process of reconsideration. In doing so, he granted the employee a second bite of the cherry, thereby causing serious prejudice to the company. The ET’s original decision dismissing the complaints was restored.