Mr F Njofie v Pendragon Premier Ltd: 1300375/2017
JUDGMENT
ON THE CLAIMANT’S APPLICATION FOR RECONSIDERATION OF THE JUDGMENT OF 31st MARCH 2017 The judgment of the Tribunal is:(1) It is not the interests of justice for the decision of 31st March 2017 to be reconsidered under Rule 72;(2) There is no reasonable prospect of the decision being varied or revoked.(3) The application for reconsideration is refused.REASONS
[1]The history of this case can be summarised as follows:1.1 The Claimant filed proceedings for interim relief, race discrimination and unfair dismissal. He had less than two years’ continuous service. His application for interim relief was out of time and dismissed during the course of case management.1.2 The Claimant was engaged as a vehicle technician. He was dismissed on 10th November 20126 during his probationary period.1.3 The Respondent made an application to strike out the Claimant’s claim of race discrimination and unfair dismissal under Rule 37(1)(a) of the Tribunal Rules.1.4 The Respondent gave two reasons for the dismissal:(i) the use of highly offensive racist language by the Claimant to a black work colleague to whom he used the “N word”; and(ii) not obeying reasonable management instructions. The claimant had been instructed to cease work on a vehicle and did not do so.1.5 The dismissal took place following investigations and disciplinary proceedings including an appeal hearing. The Respondent asserted that the Claimant’s behaviour constituted gross misconduct. The Respondent submitted that the summary dismissal of the Claimant was justified and proportionate.1.6 The Claimant denied that the grounds for dismissal were true. He had stopped work on the car and there had been a misunderstanding. The work colleague could have had a grudge against the Claimant.1.7 The Claimant’s complaint form ET1 provided no details of alleged racist conduct by the Respondent. Application to amend[2]At the hearing of the Respondent’s strike out application the Claimant made an application to amend his claim to include an occasion at work when a colleague told him to “fuck off” and that he had been requested on two occasions by his line manager to use deodorant. He alleged these were examples of racist behaviour of the Respondent.[3]The Claimant provided no explanation for why these complaints of racism had not been made earlier. No grievance had been raised by the Claimant of race discrimination.[4]The application to amend was refused after hearing submissions from both parties, giving due consideration to the lateness of the Claimant’s complaints of alleged discriminatory conduct, the lack of explanation for the late application to amend, the nature and merits of the allegations, and applying the principles of Selkent Bus Company v Moore [1996] ICR 836 and S33 Limitation Act 1980. It was not just and equitable to extend time for the amendments to be made. Strike out application[5]The Respondent’s application to strike out the claim of race discrimination and unfair dismissal was allowed. Full reasons were given to the parties. In summary the reasons were:5.1 The three examples of alleged racist behaviour were comments that could have applied to any person of any race and had no inherent racist connotation.5.2 The Claimant had not raised complaints about the three comments at either his disciplinary or appeal hearings and had made no mention of the complaints in his ET1. He raised these allegations of racist conduct for the first time at the hearing of the strike out application.5.3 The Claimant’s motivation for bringing his unfair dismissal proceedings was that the grounds for dismissal were untrue and that therefore there must have been another reason for his dismissal.5.4 The Claimant’s complaint of race discrimination was based on a bare allegation.5.5 The Respondent had demonstrated by the contemporaneous documentation provided at the hearing what the reasons for dismissal were as set out at paragraph 1.4 above. 2.6 It was not apparent that the Claimant had any injury to feelings at the time or subsequently because of the comments. His motivation for bringing a complaint of race discrimination was not injury to feelings but because he claimed the reasons for his dismissal were not true. 2.7 Although it is rare for a discrimination complaint to be struck out, applying Qdos Consulting Ltd & Ors v Swanson UKEAT/0495/11/RN the Respondent had crossed the high threshold of showing that the Claimant had no reasonable prospect of success. Tribunal Rules 3. Rules 70, 71 and 72 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 schedule 1 provide (so far as relevant): 70 A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) 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 (“the original decision”) may be confirmed, varied or revoked. It if is revoked it may be taken again. 71 Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties of within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 72(1) An Employment Judge shall consider any application made under rule 71. If the judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provision views on the application. Grounds for the application for reconsideration 4. The judgment of 31st March 2017 was sent to the parties on 3rd April 2017. The Claimant’s application for a reconsideration was made in writing on 13th April 2017 and therefore is within time under Rule 71. The Claimant has set out his grounds for the reconsideration application and provided additional documents. The grounds are summarised as follows:4.1 Paragraphs 1 – 8 are incoherent. They appear to relate(1) to British/Black African history and an allegation that the English are prejudiced against people of African or African-Caribbean origin; and(2) a member of the Respondent’s staff apologising for a comment concerning a terrorist attack in France.4.2 Paragraphs 9 - 16 relate to a complaint about the DVLA’s conduct and the Claimant’s application to the European Court of Human Rights in respect of the DVLA’s refusal to provide the Claimant with a driving licence.4.3 Paragraphs 17 - 20 the Claimant admits that he was told by his line manager not to work on a vehicle but that there was a misunderstanding about the incident.4.4 Paragraphs 21 – 22 are incoherent and appear to refer to the American presidential elections.4.5 Paragraph 23 claims that the Respondent’s dismissal proceedings were a “set up”.4.6 Paragraphs 24 – 25 claims that the Respondent failed to send the Claimant the appeal hearing investigation notes.4.7 Paragraph 26 requests that the judgement should be reconsidered in order that the Claimant will not need to take the case to the European Court of Human Rights.[6]I therefore consider there are no grounds put forward for the judgment to be reconsidered under Rule 72. A reconsideration would not be in the interest of justice. There is no reasonable prospect of the decision being varied or revoked. On these grounds, the application for reconsideration is refused. Signed by