The claimant, a sales manager, was seconded to Canada and a side letter varied his employment contract. Commission made a large portion of his remuneration. He was informed in May that commission would no longer be paid and in June 2019 he resigned as constructively dismissed. The ET originally decided that the side letter and contract should be interpreted to mean that any entitlement to commission ceased after 12 months so the claimant asked for reconsideration on the basis that neither party had argued that. The EJ rejected that argument but reconsidered generally and found the respondent had breached the implied term of trust and confidence.

The respondent appealed on the grounds that the EJ should not have reconsidered the case with a cross-appeal from the claimant that the decision on the side letter was wrong. The EAT allowed the appeal and dismissed the cross-appeal concluding broadly that the EJ had failed properly to consider whether the interests of justice required a reconsideration; the proper contractual interpretation was an arguable issue that should have been raised on appeal to the EAT; and the EJ had gone a ‘frolic of his own; in reconsidering the outcome as it was not part of the application.