ABC v Xyz Reconsideration — 2024

At the preliminary hearing on 5 and 6 October 2023, the tribunal made deposit orders in relation to the claimant's section 64 TULRCA claim for unjustified discipline and section 146 TULRCA victimisation claim. Both claims concerned the respondent's refusal to provide funded legal support for the claimant's claims against the respondent union. The summary reasons recorded that there was little prospect of the section 64 claim succeeding because the refusal appeared to be based on the belief that the union would not fund employment litigation against itself, and because the claimant had previously adopted a similar position when working for the union.

The claimant later applied for reconsideration and said that the tribunal should hear evidence before making any findings, relying on the Reuby litigation, an email said to show that legal fees had been authorised in another case, the possibility of more than one reason for the refusal, and the absence of live witness evidence. The judge held that no findings of fact had been made on the disputed evidence and that the application was, in substance, an attempt to re-argue matters already considered. Applying rule 70, and referring to Liddington v 2Gether NHS Foundation Trust and Ebury Partners UK Ltd v Acton Davis, the tribunal concluded that there was no basis for reconsideration in the interests of justice.

The judge did, however, amend paragraph 3.a.2 of the earlier summary reasons so that it was clear no finding had been made that the paid legal costs would never be paid. The amended wording recorded only that there was little reasonable prospect of a finding that funded legal support for an employment claim against the respondent was otherwise available, or believed to be available, for external funding of independent legal support. The application was otherwise refused, and the tribunal noted that the deposit order did not prevent the claimant from pursuing the claims at final hearing.