Miss L Elliott-Johnson v Ian Henery Solicitors Ltd: 1303419/2021
REASONS
[3]After receiving the Tribunal’s written reasons, the Respondent made an application on 30 August 2024 for the Tribunal to reconsider its judgments that the Respondent had unfairly dismissed the Claimant for asserting a statutory right contrary to s.104(1)(b) of the Employment Rights Act 1996 (“the Act”) and wrongfully dismissed the Claimant in breach of her contract of employment with the Respondent.[4]Under Rule 68(1) of the Employment Tribunal Procedure Rules 2024 a Tribunal may either on its own initiative, or the application of a party reconsider any Judgment where it is necessary in the interests of justice to do so. A Judgment under consideration may be confirmed, varied or revoked.[5]The interests of justice ground do not mean that an unsuccessful litigant is automatically entitled to have the Tribunal reconsider its judgment. The interests of justice apply to both parties in the proceedings. The underlying public policy principle in all proceedings of a judicial nature is that there should be finality in litigation. Therefore, reconsideration is a limited exception to the general rule that decisions should not be reopened or relitigated.[6]This is not a procedure that provides a disappointed party with a second bite of the cherry. It is not a rehearing of the case in which evidence already given can be reheard, or new evidence can be provided and considered which would have been available at the time of the hearing. The Tribunal can only consider evidence that has become available since the conclusion of the hearing to which the decision related, the existence of which could not have been reasonably known of, or foreseen, at the time.[7]At the first Case Management Preliminary Hearing held on 10 March 2022 Mr Yoong, who represented the Respondent throughout the proceedings, made an application by a statement dated 7 March 2022 to strike out the Claimant’s claims on the grounds that the claims were vexatious and had no reasonable prospect of success.[8]The Tribunal was not prepared to consider this application. The Judge considered that the Claimant had an arguable case that should be determined at a substantive hearing. Mr Yoong was informed that this did not prevent the Respondent, if so advised, from making a further application to strike out the claims. No further strike out application was made in advance of the final hearing.[9]Mr Yoong did not attend the second Case Management Preliminary Hearing held on 10 January 2023 at which the final hearing was relisted, and further directions were made by the Tribunal which included disclosure of documents and exchange of witness statements. In the absence of the Respondent the Claimant was directed to prepare an agreed bundle of documents for the final hearing and did so. At the commencement of the final hearing Mr Yoong confirmed that the bundle of documents prepared by the Claimant had been agreed. He made no application for any further documents to be added to it.[10]The Tribunal refused to reconsider Mr Yoong’s earlier application to strike out the Claimant’s claims when the parties had now fully prepared for a full hearing and this would provide the Tribunal with the benefit of having full knowledge of the facts and issues before considering the parties’ representations.[11]After the preliminary discussions with the parties the Tribunal retired to read all the witness statements submitted by the parties and the documents in the Agreed Bundle. The statements read by the Tribunal included Mr Yoong’s earlier application to strike out the claims and his second statement dealing with his investigation of the grievance which the Claimant submitted after her dismissal. The Tribunal had completed their reading by the end of the morning and commenced hearing evidence on the afternoon of the first day of the hearing during which the Claimant gave evidence and was cross-examined by Mr Yoong.[12]During the course of the hearing the Tribunal explained to the parties that they had concluded that the series of incidents, the facts of which were in dispute, that occurred after the Claimant’s dismissal were not relevant to their determination of the claims before them and that for that reason they would not be making any findings of fact in respect of these incidents.[13]The statement submitted by Mrs Elliott, the Claimant’s mother, dealt only with those incidents and Mr Yoong agreed that he did not need to cross-examine Mrs Elliott when no findings of fact were to be made by the Tribunal about the matters to which she referred. The Claimant withdrew the witness statement from Mrs Fletcher for the same reason.[14]The Respondent had provided a short witness statement signed by Ms Bougan who worked as a Paralegal for the Respondent during the Claimant’s employment. The Claimant when giving her evidence disputed the contents of this statement. Ms Bougan did not attend the Tribunal hearing and so could not affirm the content of her statement or be cross-examined. The Tribunal explained to the parties that in these circumstances it was likely that they would not be able to attach any weight to Ms Bougan’s statement.[15]The Respondent mistakenly asserts that Mrs Ruth Margaret Barrett is a member of the Tribunal and makes substantial criticism of her to support its application. The third member of the Tribunal is Mrs Rachael Barrett. Mrs Ruth Barrett is not known to members of the Tribunal. She has not been involved in these proceedings.[16]The Respondent has submitted seven previously undisclosed documents for the Tribunal’s consideration. The Tribunal has concluded that these documents could have been made available by the Respondent at the time of the hearing. The Respondent has also submitted a statement from Mrs Peng Lee and two further statements from Ms Bougan.[17]It is explained above that a reconsideration by a Tribunal does not involve a rehearing of the case or consideration of documents and oral evidence that were not before the Tribunal at the hearing and could have been made available to the hearing. The Tribunal has concluded that it should take no account of these further documents and statements in reconsidering its decisions.[18]The Tribunal was properly constituted. They made their findings of fact and reached their decisions after extensive deliberation of all the oral and documentary evidence provided to them and the submissions (oral and written) they received from the Claimant and Mr Yoong. Mr Yoong’s submission included his earlier application to strike out the claims and a skeleton argument he submitted after the Tribunal had heard all the oral evidence.[19]Where there are disputed facts a tribunal must decide on the evidence of which party it prefers. An adverse decision against a party does not mean that party’s evidence has not been considered or has been ignored. The Tribunal in this case has made decisions which are in favour of and against both parties.[20]The Tribunal concluded that the Respondent’s application for reconsideration had not provided any grounds for the Tribunal to depart from the findings of fact which are explained in their Reasons. However, after the Tribunal read the Respondent’s Notice of Appeal filed with the Employment Appeal Tribunal they concluded that although the submission at paragraph 3 of the Notice of Appeal referring to s.44 of the Act had not been submitted to them during the hearing it raised a potentially relevant issue for the Tribunal to consider in this reconsideration of its judgment of the Claimant’s unfair dismissal claim.[21]The submission is that the Claimant cannot rely on s.44 of the Act to bring her claim of unfair dismissal within the terms of s.104(1)(b) of the Act because it states at s.44(4) as follows: “(4).… this section does not apply where the [worker is an employee and the] detriment in question amounts to dismissal (within the meaning of [Part X]).”[22]The Tribunal decided after considering the circumstances of the parties and extent of the claims that it was in the interests of justice and for the benefit of the parties for them to exercise their own initiative at this stage of the proceedings to continue their reconsideration of their unfair dismissal Judgment by considering and adjudicating on the submission made at paragraph 3 of the Respondent’s Notice of Appeal.[23]The Tribunal notified the parties of this decision in accordance with Rule 71 of the Employment Tribunal Procedure Rules 2024. This provided the parties with the opportunity to request a hearing (which neither requested) and if so advised to make further written submissions to the Tribunal. The Claimant did make further submissions in which she referred to the Tribunal’s findings that the Claimant had genuine health and safety concerns about her workplace which she pursued with the Respondent in good faith.[24]The Tribunal was aware that s.104 of the Act did not apply to all statutory rights only to the relevant statutory rights referred to as s.104(4). These include any rights conferred by the Act for which remedy for their infringement is by way of complaint or reference to an employment tribunal. This means that where a new employment right is inserted into the Act it automatically becomes a relevant statutory right provided that the remedy for infringement of that right is by way of a complaint to an employment tribunal. The statutory rights covered by s.104(4) include protection from detriment rights at Ss.43M47G of the Act and the right not to be unfairly dismissed at s.94 of the Act.[25]The Claimant confirmed at the commencement of the hearing that she had made representations to the Respondent of facing potential detriments to her health and safety from workplace arrangements which fell within s.44 of the Act for which she pursued a claim of unfair dismissal within s.104(1)(b). The Tribunal found that the Claimant had in good faith brought to the Respondent’s attention by reasonable means concerns about her health and safety. They concluded that this brought her within the terms of s.44(1)(c) which resulted in their finding that she had been unfairly dismissed as she claimed.[26]Upon reconsideration the Tribunal concludes that when reaching this decision, they did not give full and proper consideration to the terms of s.44(4). They have now done so by extending the reconsideration of their judgment to the Respondent’s representations at paragraph 3 of its Notice of Appeal. The Tribunal concludes that s.44(4) prevents the Claimant from pursuing an unfair dismissal claim by relying on s.44 which cannot support her claim for unfair dismissal. Therefore, the Tribunal’s Judgment that she was unfairly dismissed must be revoked.[27]The Claimant was dismissed without notice which is a potential wrongful dismissal. The burden of proof is on the Respondent to prove that the Claimant’s behaviour amounted to a repudiatory breach of contract to justify the summary dismissal. This is a question of fact for the Tribunal to determine, and the Tribunal found that the Respondent had failed to establish such a breach by the Claimant. The Claimant’s claim for wrongful dismissal succeeded for that reason.[28]The Tribunal’s finding of wrongful dismissal is not affected by the revocation of the judgment that the Claimant was unfairly dismissed. This judgment that the Claimant was wrongfully dismissed by the Respondent is confirmed.