Employment Judge Cookson siting with Mr Khan and Mr ForwardIn person for claimantMr R Barker (instructed by solicitor) for respondentDate 14 December 2020
JUDGMENT
The unanimous decision of the tribunal panel in this case is that:[1]The claimant was unfairly dismissed contrary to s94 of the Employment Rights Act 1996 (ERA) when he was dismissed by reason of his capability.[2]It is in the interests of justice for the tribunal to make a deduction from any compensation payable to the claimant for unfair dismissal of 75% under the principles set out in Polkey v AE Dayton Services Limited.[3]The claimant’s claims under s15 and ss20 and 21of the Equality Act 2010 are not well founded and are dismissed.
REASONS
[1]It is necessary to record some background to explain this judgment. Following a hearing between 7 to 11 December 2020 the tribunal found that the claimant had been unfairly dismissed but that it was in the interests of justice for the tribunal to make a deduction from any compensation payable to the claimant for unfair dismissal, under the principles set out in Polkey v AE Dayton Services Limited of 75%.[2]The case was listed for remedy but before that hearing the tribunal was notified by ACAS that settlement had been agreed and the claim was subsequently dismissed.[3]The claimant then applied for a reconsideration of the liability judgement. The claimant was asked to explain the basis of that application in light of the settlement and subsequent dismissal of the claim. In a reply dated 4 January 2021 sent to the tribunal on 8 January the claimant said “In regards to a recent judgment made dated 4th January 2021, my unfair dismissal case was withdrawn due to both parties have reached settlement through ACAS I accept the judgment made,”. However, he then goes on to ask the tribunal to have a decision on remedy matters. The claimant has subsequently written to the tribunal repeating a suggestion that he wishes the liability judgment to be reconsidered and that he considers his original application to for 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 1307642/2019 reconsideration to the outstanding. Despite requests made to him by the tribunal to explain the legal basis for these applications that claimant has failed to suggest any meaningful basis on which the tribunal would have jurisdiction except that, in essence, he is unhappy with the original judgment. The latest correspondence was received on 25 March 2021. He has not disputed the validity of the ACAS settlement.[4]To be clear to the claimant, the above claim has been dismissed because a binding settlement though the auspices of ACAS had been agreed. The effect of that settlement is that the tribunal no longer has any jurisdiction to consider remedy in this case. In that sense the ACAS settlement was the end of this case. If the claimant has any concerns about the ACAS process was conducted and what he was told about the effect on this claim that it is matter for him to take up with ACAS.[5]In any event the claimant’s application for reconsideration does no more than, in broad terms, state his dissatisfaction with the with the findings of fact made by the employment tribunal. The panel took some time to carefully reflect on the evidence and submissions it received and made findings on fact based on those matters. The claimant states that he was unaware that the “Polkey” issues would be considered at this stage. However the case was listed on the basis that those matters would be determined at this hearing in the casemanagement orders of Employment Judge Johnson. The respondent made submissions on this issue and the claimant did not raise at that time that this was in any way unexpected or unfair.[6]The findings made by the tribunal in relation to the likelihood that the claimant would have been dismissed if he had not been unfairly dismissed flow from the findings of fact made on the issue of liability and were not severable from them. The matter was carefully and properly determined.[7]In the circumstances there is no reasonable prospect of the reconsideration application succeeding.