Ms K M Goody v Impact Food Group Ltd: 1300357/2025
JUDGMENT
ON APPLICATION FOR RECONSIDERATION The Judgment of the Tribunal is that the Claimant’s application dated 11 December 2025 for reconsideration of the Judgment dated 13 November 2025 and written reasons sent to the parties on 27 November 2025 is granted to the extent Paragraph 79 of the Judgment is varied to include Paragraphs 20-26 as set out below. Subject to this variation, the original decision dismissing the claimant’s complaint is confirmed.REASONS
[1]By an oral judgment given at the final hearing on 13 November 2025 the Tribunal dismissed the claim on the grounds the complaint of unfair dismissal was not well founded. Written reasons were sent to the parties on 27 November 2025 pursuant to a request made by the respondent.[2]By an application dated 11 December 2025 the claimant made an application for reconsideration.The Law
[3]Under Rule 68(1) of the Employment Tribunal Procedure Rules 2024, the Tribunal may, either on its own initiative or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision may be confirmed, varied or revoked.[4]Rule 69 provides that an application for reconsideration under Rule 68 must be made in writing within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties.[5]The process by which the Tribunal considers an application for reconsideration is set out in Rules 70(2),(3),(4)&(5).[6]The Tribunal has discretion to reconsider a judgment if it considers it to be in the interests of justice to do so. Rule 70(2) requires the Judge to dismiss the application if the Judge decides that there is no reasonable prospect of the original decision being varied or revoked. Otherwise, the application is dealt with under the remainder of Rule 70.[7]In deciding whether or not to reconsider the judgment, the Tribunal has a broad discretion, which must be exercised judicially, having regard not only to the interests of the party seeking the reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[8]The reconsideration rules and procedure are not intended to provide an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way. They are not intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed (with or without different emphasis). Nor do they provide an opportunity to seek to present new evidence that could have been presented prior to judgment.[9]Guidance for Tribunals on how to approach applications for reconsideration was given by Simler P in the case of Liddington v 2Gether NHS Foundation Trust UKEAT/0002/16/DA. Paragraphs 34 and 35 provide as follows: “34. […] a request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration. Where […] a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.”[10]In the case of Outasight VB Limited v Brown 2015 ICR D11 EAT (the "EAT") it was held that an employment judge has a broad discretion to consider whether reconsideration of a judgment is appropriate in the circumstances. However this discretion must be exercised judicially and must have regard not only to the interests of the claimant (as the person making a reconsideration application) but also in the interests of the respondent, as well as the public interest requirement that there should, so far as is possible, be finality in litigation.[11]In Fforde v Black EAT 68/60 ("Fforde") the EAT decided that the interests of justice ground of review does not mean: "...that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order".[12]In coming to a decision whether to grant the claimant’s application for reconsideration because it was necessary in the interests of justice to do so, I reminded myself that I must also seek to give effect to the overriding objective in Rule 3 of the ET Rules to deal with cases "fairly and justly" and to be guided by the common law principles of natural justice and fairness.[13]In determining the claimant's application I directed myself that in assessing the "interests of justice" I must make an assessment of all relevant facts and circumstances of the matter and balance the interests of both parties which includes the principle of finality of litigation. The Application[14]In accordance with Rule 69, the application should have been made within 14 days from 27 November 2025. (i.e the date the written reasons were 10 December 2025. The application is dated 11 December 2025 and was presented on the same date. The application has been presented out of time by one day. Notwithstanding this and no explanation having been given the Tribunal decided to extend time to determine this application.[15]The application for reconsideration is made on the grounds the findings are fundamentally flawed for the following reasons.(i) in the context of assessing inconsistency of treatment, the judgment wrongly made a factual reference to a “comparator who held a knife on a student throat”, which was not pursued in evidence by the claimant, whereas the claimant compared her treatment to that of another employee Lisa Taylor;(ii) at Paragraph 47, the Tribunal found flaws in the investigation which renders the finding of contributory conduct to be flawed.[16]Rule 70(1) requires the Tribunal to consider whether there is any reasonable prospect of the original decision being varied or revoked which is in the interests of justice. I have considered the application with this test in mind, and also given consideration to the overriding objective to deal with cases fairly and justly.[17]On review of the judgment I have come to the following conclusion;(i) In relation to Paragraph 47, the claimant is mistaken the Tribunal found procedural flaws. The contents in Paragraph 47, merely summarise the submissions made by Mr Hussain. As a matter of fact the Tribunal found no procedural flaws in the disciplinary process as confirmed in Paragraphs 70 to 75 of the judgment. It therefore follows this ground is misconceived and therefore there is no reasonable prospect of the judgment being revoked or varied.(ii) In relation to the inconsistency issue, the claimant is correct to point out the judgment does not set out the decision or reasons in relation the named comparator Lisa Taylor. To this extent only, the judgment is potentially defective. It therefore cannot be said the application has no reasonable prospects of success. Accordingly, this ground is addressed below.[18]The Tribunal determined it was able to deal with the application without a hearing or the respondent’s input because the Tribunal heard evidence and submissions from the parties at the hearing.[19]To remedy the omission the Tribunal sets out its decision with reasons in relation to Paragraph 79 of the judgment.[20]In final submissions it was argued the claimant’s dismissal was unfair as there was inconsistency in her treatment compared to that of another employee Lisa Taylor (LT). The factual circumstances concerning LT were confirmed by Mr Massey as follows. On or about February 2024 LT verbally requested two weeks leave for the period 3 December 2024 to 18 December 2024 to attend a family wedding in Jamaica. This request was refused. A further request was made in November 2024, which was also refused. From 19 November 2024 to 14 February 2025 LT was absent on sick leave, which included the time period for which she had requested annual leave. Upon LT’s return to work, she was subjected to a disciplinary process for her conduct and an allegation that she went on sick leave to attend a wedding in Jamaica knowing that her holiday request had been declined. LT was issued with a final written warning.[21]In evidence, Mr Massey said that LT explained that she went on sick leave for the period 19 November 2024 to 14 February 2025 due to stress. She presented Fit Notes for her GP for this period. Mr Massey had no evidence to believe that LT attended the wedding in Jamacia, although the timing of LT’s absence coincided with the leave period she requested which had been refused. Mr Massey explained that whilst he had a reasonable belief that LT had taken sick leave to attend the wedding he could not be certain that she attended the wedding given the period of sick leave was significantly longer, both before and after, the wedding date. In any event her absence from work was supported by Fit Notes from her GP.[22]Mr Massey further explained, that in his view the claimant’s situation was different and distinguishable for the following reasons. In the claimant’s case it was clear that she understood that her leave was unauthorised as she did not make a request. She booked her holiday knowing that holidays cannot be taken during term time. Despite this the claimant went on holiday anyway. Whereas, LT’s absence was not unauthorised as she had submitted Fit Notes which confirmed she was unfit for work for that period.[23]Mr Massey in his evidence also confirmed this issue of inconsistency of treatment in relation to LT was raised by the claimant at her first disciplinary appeal hearing before him at which he revoked her dismissal and reinstated the claimant, but not at the disciplinary hearing with Miss Purcarea held on 20 November 2024 following which she was summarily dismissed. Accordingly, this issue was not considered by Miss Purcarea.[24]In considering this issue, the Tribunal had regard to the cases of Hadioannou v Coral Casino’s (1981) IRLR 352 and Paul East Surrey District Health Authority (1995) IRLR 305 CA, and the applicable legal principles. The Tribunal noted that inconsistency of treatment is not determinative on its own. The key question is whether the respondent acted reasonably under s98(4) of the Employment Rights Act 1996.[25]The Tribunal noted the claimant did not raise this inconsistency of treatment point at her disciplinary hearing or in the Claim Form. It was raised in cross examination of Mr Massey who was not involved in the claimant’s dismissal. Notwithstanding this point, the Tribunal concluded that the claimant’s case was materially different to that of LT’s as Mr Massey explained in his evidence. The claimant did not make a formal request for leave. She went on leave knowing her decision to go on holiday was agreed or authorised. She knew that she would have to face a disciplinary process and may be dismissed. Whereas LT’s was not on unauthorised leave for the period of her absence. She had presented Fit Notes which certified her as unfit for work. LT possibly may have gone to the wedding in Jamaica, during her sick leave period, although there was no evidence that she did, however, she was not on unauthorised leave at that time .[26]The Tribunal therefore concluded the claimant’s and LT’s case were not similar on the facts and circumstances. There was no inconsistency of treatment. Therefore, as the Tribunal found the decision to dismiss the claimant was within the band of reasonable responses.[27]Accordingly, the original judgment is varied to include the above Paragraphs 20-26 at Paragraph 79 of the original judgment. Subject to this variation only, the original judgment is confirmed.[28]For the reasons set out above, the application for reconsideration is granted only to the extent the original judgment is varied. Approved By