Mr J Reilly v Alun Griffiths (Contractors) Ltd and Others: 1403296/2022

EMPLOYMENT TRIBUNALS

Case No 1403296/2022

Between

Mr J. ReillyClaimant

(1) Alun Griffiths (Contractors) Limited (2) Logical Personnel Solutions Limited (3) I-PAYE LimitedRespondent

Before

Employment Judge G. King

Date 13 November 2024

JUDGMENT

ON APPLICATION FOR RECONSIDERATION The Judgment of the Tribunal is that the Claimant’s application for reconsideration is refused because there is no reasonable prospect of the original decision being varied or revoked.

REASONS

[1]The Claimant made an application dated 30 September 2024, seeking reconsideration of the Tribunal’s Judgment of 29 August. The application was made under Rule 71 of the Employment Tribunal Rules of Procedure 2013.

[2]The application for reconsideration was made within 14 days of the Judgment being issued to the parties on 16 September 2024, as required by Rule 71(2).

[3]Through the application, the Claimant requests that the Tribunal revoke the Judgment of 29 August 2024. He contends it is necessary in the interests of justice to do so.

[4]The Claimant provided sixteen further documents in an email dated 8 October 2024.

[5]This has been a hearing on the papers. A face-to-face hearing was not held because it was not reasonable to do so and all issues could be determined in a paper hearing.

The Law

[6]Rule 70 of the Employment Tribunal Rules of Procedure 2013 states: "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. If it is revoked it may be taken again."

[7]This gives the Tribunal the discretion to reconsider a Judgment where it is necessary in the interests of justice, either on its own initiative or upon application by a party.

[8]Rule 71 sets out the requirements for a party to make an application for reconsideration: "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 or 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."

[9]Therefore, a party must make a written application within 14 days explaining why reconsideration is necessary.

[10]Rule 72 provides the process for how the Tribunal should consider an application for reconsideration: "(1) [The Tribunal] shall consider any application made under rule 71. If [the Tribunal] 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."

[11]This requires the Tribunal to firstly consider if there is a reasonable prospect of varying or revoking the original decision. If there is no such prospect, the Tribunal must refuse the application.

[12]Rule 72(2) states: "If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the [Tribunal] considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations."

[13]Therefore, if the Tribunal does not refuse the application under Rule 72(1), reconsideration will typically be at a hearing unless the Tribunal decide a hearing is not needed in the interests of justice.

[14]The leading modern authority on reconsideration is EAT case Outasight VB Limited v Mr L Brown

[2014] UKEAT 0253_14_2111

. This held the approach in civil litigation case Ladd v Marshall

[1954] 1 WLR 1489

continues to encapsulate the interests of justice test for fresh evidence under the ET Rules.

[15]Ladd v Marshall established three criteria for admitting fresh evidence: it could not have been obtained with reasonable diligence for the original hearing; it must be relevant and it would probably have an important influence on the result; and it must be apparently credible.

[16]The EAT in Outasight held the 2013 ET Rules did not substantially change the principles or interests of justice test for reconsideration. The Ladd v Marshall criteria will apply in most fresh evidence cases with discretion to depart in exceptional circumstances.

[17]The interests of justice encompass finality in litigation and avoiding “second bites at the cherry” (per Outasight). Reconsideration based on arguments parties could have raised originally is rarely justified given the public interest in finality.

[18]A further key authority is EAT case Ebury Partners UK Ltd v Mr M Acton Davis [2023] EAT40 which concerned an EJ's reconsideration of his original Judgment dismissing the Claimant’s claims.

[19]The EAT in Ebury Partners confirmed the interests of justice allow reconsideration only where strictly necessary. There is a strong public interest in litigation finality, so parties cannot reopen matters they had a fair chance to argue originally.

[20]The EAT held reconsideration is not justified by an EJ reaching new conclusions on evidence available for the original Judgment, as this undermines finality.

[21]Ebury Partners found the EJ erred in law by failing to properly assess the interests of justice including finality when reconsidering. Applications to reconsider should specify which precise decisions the party seeks to revisit.

[22]The Tribunal must assess reconsideration applications against the interests of justice including the public interest in litigation finality as established in these authorities. Reconsideration is only permitted where strictly necessary, not merely where a different conclusion could be reached. Materials considered

[23]In considering the application for reconsideration, the Tribunal has reviewed the following documents:a. The Claimant's written application dated 30 September 2024 setting out their request for reconsideration and grounds relied upon. This explains why the Claimant contends reconsideration is in the interests of justice;

b. The Claimant’s further email of 8 October 2024;

c. The 16 documents sent by the Claimant on 8 October 2024;

d. The links contained in the Claimant’s email of 8 October 2024;

e. The existing claim file, and the original 29 August 2024 Judgment;

f. The applicable Employment Tribunal Rules and leading authorities on reconsideration principles, which establish the legal test the Tribunal must apply in assessing whether to reconsider the earlier Judgment.

[24]In considering the application, the Tribunal has had regard to these documents and the Claimant’s arguments regarding how each is said to support reconsideration being in the interests of justice. The Tribunal has taken all these documents into account in determining the application. Consideration

[25]Rule 70 of the Rules provides a single ground for reconsideration, being the interests of justice. This replaced the previous test, which gave five grounds for reconsideration; one of these was that new evidence had become available since the conclusion of the Tribunal hearing to which the decision related, the existence of which could not have been reasonably known of or foreseen at that time. However, it is clear that, following Outasight VB Ltd v Brown [2015] ICR D11 EAT that the interests of justice test can be viewed through that lens. The EAT confirmed in that case that the test set out by the Court of Appeal in Ladd v Marshall

1954 3 All ER 745

, CA.

[26]In that case, the Court of Appeal established that, in order to justify the reception of new evidence, it is necessary to show three separate matters – that the evidence could not have been obtained with reasonable diligence for use at the original hearing, that the evidence is relevant and would probably have had an important influence on the hearing and, finally, that the evidence is apparently credible.

[27]Applying the Ladd v Marshall test, the Tribunal finds that almost all the new evidence put forward by the Claimant would have failed the first test; the few items that are genuinely new and could not have been obtained with reasonable diligence would have failed the second test, in that they would not have had an important influence on the hearing. An example of this are the links to the HSE website; what was important in this case was the contractual relationship between the parties. The Tribunal has made its findings on this point, and the details of how the parties were expected to comply with HSE legislation are irrelevant.

[28]Accordingly, the Tribunal does not find that the determination in this case should be reconsidered by virtue of the purported new evidence as this does not pass the tests in Ladd v Marshall. The Tribunal does not consider that it is in the interests of justice to allow the Claimant a second bite of the cherry because he did not bring to the Tribunal’s attention evidence that was available in support of his case at the original hearing. The Tribunal rejects the argument that the Respondents have restricted the bundle to deliberately compromise the Claimant’s case. A bundle of a limited size is important in a Tribunal hearing to limit the length of the hearing and the required reading time. Only relevant documents should be included in a bundle, and the Tribunal is satisfied that was the case.

[29]Furthermore, the Tribunal does not consider that this further evidence would have changed the outcome in any event. Finally, considerations of interests of justice should also have regard to the need for finality in litigation.

[30]The earlier case law suggests that the interests of justice ground should be construed restrictively. The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd

[1982] ICR 440

decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) 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”.

[31]More recent case law suggests that the “interests of justice” ground should not be construed as restrictively as it was prior to the introduction of the Overriding Objective (which is now set out in Rule 2). This requires the Tribunal to give effect to the overriding objective to deal with cases fairly and justly. As confirmed in Williams v Ferrosan Ltd

[2004] IRLR 607

EAT, it is no longer the case that the “interests of justice” ground was only appropriate in exceptional circumstances. In Newcastle Upon Tyne City Council v Marsden

[2010] IRLR 743

, however, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include that there should be finality in litigation, which is in the interest of both parties.

[32]Turning to the matters that the Claimant says make it in the interests of justice for the Judgment to be reconsidered, the Tribunal makes the following findings. The Claimant argues that paragraph 24 of the Judgment does not depict the true nature of the engagement of the Claimant by the First Respondent. He says that he was engaged to provide personal services and as such an employee relationship existed. The Tribunal’s findings were that he was employed by his own PSC until April 2021 and has dealt with the point about whether or not there could be parallel contracts in respect of the Claimant, from paragraph 55 of the Judgment onwards. The Claimant is understandably unhappy with this finding but his disagreement with it is not a valid reason for reconsideration.

[33]The Claimant says that paragraph 26 of the Judgment is incorrect, as IR35 imposed government controls over the use of PSCs, but did not prevent them. Paragraph 26 does not actually state that IR35 prevented PSCs. It is accepted that the First Respondent made the decision to no longer make payments to contractors via PSCs, and this is why the Claimant moved to being paid by the CIS scheme in April 2021. This does not alter the Tribunal’s Judgment. The fact that the First Respondent imposed the restriction on PSCs is not a reason why the Judgment should be reconsidered.

[34]The Claimant has said that paragraph 48 of the Judgment makes it appear that the fact that he was not employed by his own PSC during the 2021 – 2022 tax year has been overlooked by the Tribunal. This, however, was dealt with from paragraph of the Judgment 69 onwards. The Claimant also comment that the tax return was not for his PSC and states “this was a personal tax return, the business tax return”. This is exactly the basis on which the Tribunal considered the Claimant’s tax return. It was his personal tax return confirming that his employer was his own PSC for the tax year 2020 – 2021. There is no basis for this part of the Judgment to be reconsidered.

[35]The Tribunal has already made its findings on the level of personal service provided. The fact that the Claimant’s disagrees with these findings is not a basis for them to be reconsidered. The Claimant’s day-to-day role did not change after 7 April 2021, when he registered with the Third Respondent. It does not it make a difference to the findings if the Second Respondent is responsible for introducing the Third Respondent into the Claimant’s employment situation. The Tribunal is satisfied there has not been any misrepresentation of evidence by the Respondents as the Claimant suggests. If the Tribunal has made an error of law, the correct route to address this is by way of an appeal not a reconsideration.

Conclusion

[36]Taking all of the above together, the Tribunal does not consider that it is in the interests of justice to reconsider the original Judgment.

[37]Accordingly, the Tribunal refuses the application for reconsideration pursuant to Rule 72(1) because there is no reasonable prospect of the Judgment dated 29 August 2024 being varied or revoked.