Mr C Burton v Greene King Services Ltd: 1303297/2023
JUDGMENT
ON APPLICATION FOR RECONSIDERATION The Judgment of the Tribunal is that the Claimant’s application dated 9 September 2024 for reconsideration of the Judgment promogulated on 9 September 2024 sent to the parties on 9 September 2024 is refused because there is no reasonable prospect of the decision being varied or revoked. Accordingly, the claim remains struck out.REASONS
[1]By a Judgment promulgated on 9 September 2024 the claimant’s claim was struck out in accordance with Rule 37(1)(c) & (d) of the Employment Tribunals Rules of Procedure 2013.[2]By an email dated and sent on 9 September 2024 the claimant made an application for reconsideration of the Judgment.The Law
[3]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”).[4]Under Rule 70 of the Rules, the Employment 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.[5]Rule 71 provides that an application for reconsideration under Rule 70 must be made in writing (and copied to all other parties) within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties.[6]The process by which the Tribunal considers an application for reconsideration is set out in Rule 72. Rule 72(1) provides that where an Employment Judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application shall be refused and the Tribunal shall inform the parties of the refusal.[7]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.”[8]The Tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases fairly and justly. This obligation is provided in Rule 2 of the 2013 Regulations. The obligation includes:(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. The application[9]The claimant’s application was received within the relevant time limit in accordance with Rule 71. The application has also been copied to the respondent.[10]The claimant’s reasons for this application as set out in his email are for completeness copied in full below.(i) I gave all the relevant information that I could and to my knowledge all that was requested to my Unite representative.(ii) My claim was for unfair dismissal and disability discrimination, the unfair dismissal was upheld however Greeneking admitted by default that the company had discriminated against me by failing to carry out a return to work risk assessment.(iii) My claim that Greeneking treated me differently to other General managers was never defended.(iv) My wife was reinstated and eventually “paid off” as Greeneking admitted their negligence and incorrect handling of her case.(v) Despite my numerous requests to Greeneking to enter into conciliation they have ignored my request over and over again.(vi) I feel that Greeneking have committed an injustice to a loyal, long standing employee purely because following my six month course of intensive chemotherapy I struggled to carry out my duties upon my return to work. (v) The decision made by Greeneking has completely negatively affected my standard of living and has put immense pressure on myself and my family. Chronology[11]It is helpful to set out the chronology leading to the strike out judgment.(i) On 10 April 2023 the claimant presented his Claim Form. The named representative for the claimant was Mr A Arif of Unite the Union.(ii) On 9 May 2023 the respondent filed its Response Form with Grounds of Resistance contesting the claim.(iii) On 16 August 2023, the parties attended a Private Preliminary Hearing by telephone to deal with case management of this claim. The claimant attended in person. He was not represented by his Union representative Mr Arif. At this hearing Employment Judge Howden-Evans made case management orders and listed the case for final hearing for 24-28 June 2024. The record of this Preliminary Hearing was sent to the parties on 14 September 2023. In particular, the Orders made were; (a) claimant to serve his Schedule of Loss by 6 October 2023, and the respondent to serve a counter schedule by 20 October 2023; (b) parties to give disclosure by 1 December 2023; (c) parties to agree the contents of the hearing bundle by 18 December 2023; (d) parties to exchange witness statements by 12 April 2024;[12]On 28 September 2023 the claimant made an application to amend his claim although he had confirmed to the Tribunal on 14 September 2023 that Mr Arif was still representing the claimant.[13]On 1 December 2023, the respondent representative filed the respondent’s disclosure list. The claimant did not comply. According to the respondent representative they chased Mr Arif for a response on 19 December 2023 and 2 January 2024.[14]On 16 January 2024, the respondent representative applied for an Unless Order to ensure the claimant complied with the order to disclose documents and agree the final bundle.[15]By letter dated 11 March 2024, the Tribunal wrote to the claimant’s representative for his response by 18 March 2024 to explain why the case management orders had not been complied with. The Tribunal did not receive a response.[16]On 15 May 2024, the Tribunal issued a strike out warning on the basis of non-compliance and that the claim was not being actively pursued. A response was required by 29 May 2024. This warning was sent to the claimant and to Mr Arif. No response was received either from the claimant or Mr Arif by the due date.[17]On 4 June 2024, in response to the respondent representative email to strike out the claimant’s claim for non-compliance, the claimant replied by email stating, “ I did rely in timely manner stating the fact that Adnan Arif (Union Representative) is no longer my representative and may well have been able to pass documents on to me …” The Tribunal has no record of the claimant’s response to the strike out warning dated 15 May 2024.[18]By a further email of the same date (i.e 4 June 2024) sent by the claimant to the respondent representative and copied to the Tribunal, the claimant stated, “ I have made reasonable efforts to respond, I was not aware that my Unite representative was no longer copied in. I did not reply directly to Greenekings solicitor as from their last email I was advised that they would only take advice/instruction from their client…” The email makes no comment to the issue of non-compliance of the orders.[19]By an Order dated 20 June 2024, the final hearing listed for 24-28 June 2024 was postponed. Further, the claimant was ordered to provide by return, a copy of his response to the strike out order, explaining how and when it was sent. There is no record of a response from the claimant to this Order.[20]On 3 July 2024 the respondent representative emailed the Tribunal stating, “ We write with reference to the strike out warning and the Tribunal's latest correspondence of 20 June 2024. In the absence of the claimant’s response in a timely manner and on the basis that the claimant continues to fail to actively pursue his claims we ask the Tribunal to utilise its powers to strike out the claimant’s claims in their entirety. The respondent is being put at cost by the continuing delay of these proceedings and e-mail correspondence. We consider it is in accordance with the overriding objective to deal with this matter swiftly.” In direct reply to this email, which was copied to the Tribunal the claimant replied stating, “ May I once again, state that I have forwarded all requested information when requested..” This email gave no information about which information was forwarded, to whom and when. Neither did the claimant make any representations why the claim should not be struck out.[21]By a further email dated 2 August 2024, the respondent representative wrote, copying the claimant, “Since the Tribunal’s correspondence on 20 June, we have not received any further direction. It remains the respondent's position that the claimant is not actively pursuing their claim and evidence has not been provided to show that the claimant responded to the strike out warning. The respondent avers that the claimant’s claim should be struck out. We asked the tribunal deal with this matter on an urgent basis.”[22]By a judgment dated 9 September 2024, I struck out the claimant’s claim under Rule 37(1)(c) & (d) for non-compliance of the Tribunal Orders and because the claim has not been actively pursued.[23]By email dated 13 September 2024 sent by the claimant to the Tribunal he stated “ I supplied all of the information required via my unite representative.”[24]I have considered the application carefully, and in doing so, I have had regard to the interests of justice and the overriding objective as set out in Rule 2 to ensure cases are dealt with fairly and justly. For the reasons which are set out below, I find there is no reasonable prospect of the judgment being revoked or varied.(i) As at the date of the judgment striking out the claim, and this reconsideration application, the claimant has not only failed to, but also made no attempt to, comply with the case management orders. The claimant has had many months to comply. Furthermore, the claimant has not adequately replied to the Orders dated 15 May 2024 and 20 June 2024 despite being given several opportunities to do so. The fact is the claimant remains in beach of the Orders.(ii) The interests of justice are not served by the Tribunal disregarding noncompliance with its Orders. Nor are the interests of justice served by allowing relief from strike out particularly when there has been no attempt to even comply with the Orders, and when still today the failures of the claimant have not been rectified, either fully or at all. The claimant was fully aware of the Orders and what was required following the preliminary hearing on 16 August 2023. The claimant has taken no personal responsibility to comply with the Orders which he should have done. The strike out has resulted from the claimant’s own default for which he must take personal responsibility.(iii) I acknowledge that the claimant is now denied the opportunity to pursue his claim. The ET Rules gives Judge’s discretion to strike out claims where there had been a failure to comply with Tribunal Rules, and Orders. I have determined that this exercise of discretion was lawful under the Tribunal Rules in the circumstances.(iv) If I were to reinstate the claimant’s claim, this would cause prejudice to the respondent particularly in relation to costs, as it would have to incur additional costs in having to do further preparation work. Also the listing of this case for final hearing is unlikely to be before late 2025 or even into 2026, which could affect the cogency of evidence and a fair trial. Due to the claimant’s non-compliance the final hearing listed for 24-28 June 2024 had to be vacated, and denied the parties finality in this case.(v) The claimant has not argued or identified an error of law. If there was an error of law, this is a matter for appeal and not reconsideration.[25]In the circumstances the application for reconsideration is rejected on the basis there is no reasonable prospect of the judgment being varied or revoked. The claimant’s claim remain struck out.