The Claimant was a retired chairman in the Residential Property Tribunal Service. On 20/10/11 she brought a claim against the MOJ as part of the O’Brien/Miller litigation claiming that in receiving no pension she was being subjected to discrimination as a part-time worker. Her claim was stayed pending the outcome of other cases. On 25/2/16 she withdrew her claim and a judgment was issued dismissing her claim pursuant to rule 52 of the ET Rules on 16/3/16. Following relevant decisions of the Supreme Court and the CJEU, on 6/3/20 she applied for reconsideration of the dismissal judgment. The reconsideration application was determined on the papers and a judgment issued by the EJ on 3/6/21 revoking the dismissal judgment. Part of the factual matrix considered by the EJ was that the Claimant’s husband had died shortly before the dismissal of the claim. The Respondent appealed.

The EAT allowed the appeal. On the Friday before the hearing the Claimant’s solicitors informed the MOJ that in fact her husband had died in 2010, a year before she had brought the claim and 5 or 6 years before she withdrew it. The EJ had therefore proceeded on a false factual basis put forward by the Claimant or her solicitors and the appeal was therefore allowed and the judgment of 3/6/21 set aside. Although it was unnecessary to decide other points raised in the appeal, some were arguable and in the circumstances the EAT remitted the reconsideration application to be heard de novo by the EJ.