Mr P Klicner v Guarding UK Ltd: 1300112/2021
JUDGMENT
[1]The Respondent did not at the relevant times employ a full-time worker comparable to the Claimant within the meaning of regulation 2 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the PTW Regulations”).[2]It did not in any event subject the Claimant to a detriment or treat him less favourably than it treated a comparable full-time worker on the ground that the Claimant was a part-time worker in either of the following respects: 2.1. Not placing the Claimant on furlough under the Coronavirus Job Retention Scheme, between 22 April and 31 December 2020. 2.2. Failing to offer the Claimant at least 30 hours’ work per week during the same period.[3]Furthermore, not placing the Claimant on furlough as above was justified on objective grounds.[4]The Respondent did not subject the Claimant to a detriment in any of the following respects: 4.1. After his line manager changed in 2018, offering him shifts at short notice. 4.2. From 2018, offering him work at sites outside of Birmingham city centre without the Claimant requesting such work. 4.3. Not placing him on furlough.[5]In any event, the Claimant did not do an act falling within regulation 7(3)(a)(v) of the PTW Regulations at a meeting with his line manager in December 2019.[6]Furthermore, the Respondent’s acts or failures to act did not contravene regulation 7(2) of the PTW Regulations because they were not because it believed or suspected that the Claimant had done an act falling within regulation 7(3)(a)(v) of the PTW Regulations.[7]The Respondent did not subject the Claimant to a detriment in either of the following respects: 7.1. Not permitting him to take more annual leave than he had accrued on 11 and 12 June 2019. 7.2. Not permitting him to submit requests for annual leave in March 2019, March 2020 or March 2021, thus requiring him to carry over annual leave to the following holiday year.[8]In any event, whilst the Claimant’s previous complaint to the employment tribunal submitted on 9 May 2018 fell within section 45A(1)(e) of the Employment Rights Act 1996 (“ERA”), the Respondent’s acts or failures to act did not contravene section 45A(1) of the ERA because they were not on the ground that the Claimant had brought those proceedings.[9]Furthermore, the Tribunal did not have jurisdiction to hear the complaints of breach of section 45A ERA because they were brought out of time and it was reasonably practicable to bring them in time.[10]The Claimant did not make a protected disclosure in bringing his previous complaint to the employment tribunal on 9 May 2018.[11]In any event, the Respondent did not subject the Claimant to a detriment in either of the following respects: 11.1. Creating unequal opportunities for him from June 2018 by having him work on a casual assignment by assignment basis. 11.2. Subjecting him to a hostile environment in discussions with his line manager in June, November and December 2019 respectively.[12]Furthermore, the Respondent’s acts or failures to act did not contravene section 47B ERA because they were not on the ground that the Claimant had made a protected disclosure.[13]Further still, the Tribunal had no jurisdiction to hear the complaints of breach of section 47B ERA related to the Claimant’s discussions with his line manager in 2019 because they were brought out of time and it was reasonably practicable to bring them in time.[14]The Respondent did not dismiss the Claimant for a reason set out in section 101A or 103A of the ERA. Accordingly, the Claimant was not unfairly dismissed.[15]In summary, none of the Claimant’s complaints are well-founded. They are dismissed.REASONS
[1]The Claimant’s application for reconsideration of the Judgment sent to the parties on 14 October 2022 was plainly made within the 14-day time limit set by rule 71 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”).[2]In accordance with rule 72(1) of the Rules, the first step is for me to consider the Claimant’s application, to determine whether there is any reasonable prospect of the original decision being varied or revoked.[3]Again, in accordance with rule 72(1) of the Rules, this decision is mine alone. It would only have been had the application not been refused at this first stage that I would have consulted the other members of the Tribunal panel, Mr. Moosa and Mrs. Ray. I should make clear however, that the original Judgment to which the Claimant’s application relates was a unanimous judgment of all three Tribunal members.[4]As rule 72(1) makes clear therefore, the first task is for me to decide whether there is any reasonable prospect of the original decision being varied or revoked. I have decided that there is not, for the reasons that now follow. 11.6C Judgment – Reconsideration refused – Claimant rule 72 Case No: 1300112/2021[5]The first part of the Claimant’s application states, “My claims failed mainly because I made the wrong type of claims”. There is self-evidently no reasonable prospect of the original decision being varied or revoked on this basis, for the following reasons: 5.1. The Claimant is an intelligent man, with previous experience of employment tribunal litigation. Whilst there were complexities in certain elements of his complaints, he was given ample opportunity to define the complaints he wished to pursue, the list of issues having been explored at the case management stage and revisited again in detail at the start of the Final Hearing. 5.2. As was made clear when delivering oral judgment, the tribunal can only – in fact, must only – determine the case presented to it. That is what the Tribunal did. It is the only way of ensuring orderly and fair litigation. 5.3. It would of course be wholly unjust to the Respondent to now seek to decide alternative complaints, even if based on the same factual matrix. 5.4. In any event, those complaints remain undefined in the Claimant’s application.[6]The second part of the application states, “I firmly believe that I am still owed other payments, such as furlough pay …”, citing a Treasury Direction dated 15 April 2020 (attached to the application) and the Coronavirus Act 2020. The Claimant goes on to say, “I expect to recover not more than £3,215; the particulars of this application are not dissimilar to the original claims”.[7]There is self-evidently no reasonable prospect of the original decision being varied or revoked on this basis either, for the following reasons: 7.1. The Claimant does not indicate on what basis he says he is owed such payments. 7.2. In any event, those aspects of the Claimant’s case in which he complained about the Respondent not placing him on furlough under the Coronavirus Job Retention Scheme were determined by the Tribunal as confirmed in the Judgment and explained in oral reasons. The Claimant has not put forward any basis on which the Tribunal’s conclusions in these respects should be reconsidered. 7.3. If the Claimant seeks to establish an entitlement to “furlough pay” on a basis other than that argued before this Tribunal, paragraphs 5.1 to 5.3 above are repeated. A reconsideration application is not a proper basis on which to seek to present a new complaint.[8]For the reasons set out above, I see no reasonable prospect of the Tribunal changing the decision it has already reached in relation to any of the complaints.[9]The Claimant’s application for reconsideration is therefore refused.