In November 2011, the Claimant was dismissed from his position as a Consultant Paediatric Neurologist for the stated reason of gross misconduct. His complaints to the ET under the ERA 1996 of protected disclosure detriment (section 47B ERA), and of ordinary and automatic unfair dismissal (sections 98 and 103A ERA) did not succeed and were dismissed in a judgment dated 8 January 2015. Over three years later, the Claimant applied for reconsideration of the liability judgment, submitting that a Serious Untoward Incident (“SUI”) Report produced in 2012 was new evidence which cast doubt on the true reason for his dismissal. Following a hearing under rule 72(1) of the Employment Tribunal Rules, the judge rejected that contention. The Claimant appealed submitting (i) that the judge had erred in concluding that the new evidence did not meet the Ladd v Marshall test; and (ii) that a comment made by the judge at the start of the rule 72(1) hearing gave rise to apparent bias. The Respondent cross appealed against the judge’s decision to extend time to consider the application. The Claimant also appealed against a refusal to reconsider a costs order which was contingent upon success in the liability appeal.

The EAT dismissed the appeal and cross appeal. The judge was correct to reject the contention that anything in the SUI report gave rise to any reasonable prospect of the original decision of 8 January 2015 being varied or revoked. The comment founded upon in respect of apparent bias, when viewed in its proper context, was no more than an explanation to the appellant of rule 72(1) procedure. Both the appeal on liability and on costs were dismissed. The cross-appeal on liability was also dismissed.