Employment Judge MaxwellMr Ryan (instructed by Representative) for claimantMrs Reid (instructed by Solicitor) for respondentDate 13 June 2019
JUDGMENT
[1]The Claimant was employed by Priory Healthcare Limited and the parties to the proceedings are amended accordingly.[2]The Claimant having been dismissed with effect from 29 May 2015, his claim made on 4 October 2018 about dismissal and the events leading to that was not presented within 3 months.[3]Time is not extended: 3.1. the Claimant has not proven that it was not reasonably practicable for him to have presented his claims within 3 months; 3.2. it is not just and equitable to extend time.[4]The Tribunal has no jurisdiction to determine the Claimant’s claims and they are dismissed.
REASONS
Issues
[5]This preliminary hearing was listed to determine: 5.1. who the Claimant’s employer was and / or the correct identity of the Respondent; 5.2. whether the claims were brought within 3 months of the matters complained of; 5.3. if not, whether time can be extended to allow them to continue; 5.4. whether any of the Claimant’s claims have little reasonable prospect of success and whether a deposit order should be made under rule 39 of the Employment Tribunal Rules which may require the Claimant to pay a sum of £1,000 as a condition of proceeding with any such claims or arguments.
Background
[6]By a claim form presented on 4 October 2018, the Claimant brought complaints against Priory Central Services Limited (“Priory Central”), arising from his employment at Priory Hospital Southampton which he said ended on 17 July 2018. Claims were pursued under the Employment Rights Act 1996 (“ERA”) and Equality Act 2010 (“EqA”): 6.1. unfair dismissal [ordinary ERA section 98 and automatic for making a protected disclosure - ERA section 103A]; 6.2. disability discrimination; 6.3. victimisation; 6.4. breach of contract; 6.5. unlawful deduction of wages; 6.6. holiday pay.[7]The Claimant engaged in ACAS EC between 11 September and 18 September 2018 and if he was correct about the date of dismissal, then his complaints about dismissal, or events running up to dismissal, would have been in time.[8]By a response presented on 29 October 2018, the Respondent denied the claims, pleaded an effective date of termination (“EDT”) of 28 May 2015, contended the Claimant had been employed by Priory Healthcare Limited (“Priory Healthcare”) and sought to amend the identity of the respondent accordingly; the Claimant opposed that amendment.[9]The very extensive procedural history is summarised in the case management orders made by EJ Livesey on 12 March and 26 April 2019. Preliminary Matters[10]The parties were reminded of the orders made by EJ Livesey and the issues which fell for determination today. I indicated that I would decide the first three issues, before going on to consider the Respondent’s application for a deposit order.[11]The Claimant’s visual and hearing impairments were explored. The Claimant said he routinely used a magnifier, had not brought that with him today, but was confident his bifocals would suffice. His hearing impairment is tinnitus. The Tribunal advised the Claimant he should say if at any point he was having difficulty reading documents or hearing what was said; in the course of the hearing, several passages from documents were read to the Claimant to ensure that he understood their contents before answering questions. Documents[12]The Respondent provided a bundle of documents running to 91 pages, prepared in accordance with the order of EJ Livesey.[13]In default of EJ Livesey’s order, the Claimant provided a number of additional pages this morning, which the Respondent did not object to being included.[14]The Claimant did, however, object to a single additional page the Respondent sought to add, being a printout from its payroll system showing a calculation for holiday pay made in in June 2015. Mrs Reid explained that the Respondent had previously disclosed all of the payslips, which ran to May 2015. Very recently her client provided the printout for June 2015, wherein there was a calculation of the Claimant’s holiday pay, but no payslip because once credit was given for sums already paid, no balance was due to paid to him. I decided to admit this document, in case it was relevant to the time limits issue on the Claimant’s holiday pay claim. The Claimant’s stance in opposing this document’s admission was inconsistent with his simultaneous wish to have his own documents admitted late and when I asked Mr Ryan whether, aside form the document being late, there was any disadvantage to the Claimant in allowing it in, he said there was not. Witness Evidence[15]The Tribunal heard witness evidence from Mr David Ings, the Claimant. A short adjournment was necessary soon after he was sworn in, because when asked by the Tribunal whether he had read his witness statement, the Claimant said no. The Tribunal instructed the Claimant to read his statement carefully as on returning he would be asked whether its contents were true and he should note any amendments he wished to make. Following this adjournment, the Claimant was again asked whether he had read his statement and again said no, instead he said Mr Ryan had read it to him. The Claimant was reminded this document would become his evidence under oath and for the avoidance of any doubt, the Tribunal read the contents aloud to the Claimant, slowly, pausing at regular intervals for him to confirm the content was correct. At the end of this process, the Claimant was asked whether all that had been read to him was true and accurate, he said it was.[16]Mrs Laura Fehilly, gave evidence for the Respondent, confirming the truth of her statement on affirmation. Written Submissions[17]I received and considered: 17.1. the claimant’s: 17.1.1. ‘prehearing skeleton argument’; 17.1.2.‘prehearing submission’; 17.1.3.‘application for addressing pre-hearing complaints’ - which Mr Ryan confirmed were further submissions he wished me to take into account; 17.1.4.‘application for the respondent’s response to be struck out’ - I explained that I would consider the representations therein insofar as they were relevant to the issues which it fell to me to determine, but would not consider striking out the response at this hearing; 17.2. the respondent’s skeleton argument.[18]At the conclusion of the hearing, on reserving my decision, I advised the parties that they must now await the decision and were not permitted to make any further submissions or provide any further evidence in connection with the same. Hearing Management[19]The information provided to the Tribunal on the morning of the hearing about the parties’ representatives recorded Mr Ryan as Counsel. When asked whether he had told the clerk this, Mr Ryan said he was “counsellor” to the Claimant. I explained that Counsel meant Barrister, that it was an offence to put yourself forward as a Barrister if you were not one and that if he is asked at any future hearing about his capacity, Mr Ryan should simply say that he is a representative or a lay representative (i.e. not legally qualified). Mr Ryan is a former colleague of the Claimant at the Priory Hospital Southampton and has previously pursued his own claims in the Tribunal against the Respondent and / or other companies in the same group.[20]During re-examination of the Claimant, the Tribunal intervened to ensure that questions asked arose from cross-examination, were not leading and remained relevant to the issues. Facts[21]Prior to the commencement of his employment, the Claimant was sent and signed a contract of employment. The heading included “Priory Group - contract of employment”. Thereafter followed the date of issue, expiry date of offer and: “Name of employer: Priory Healthcare Ltd”[22]In cross-examination, it was put to the Claimant that the contract provided his employer was Priory Healthcare Limited and he replied “I can see that”. In reexamination, Mr Ryan drew the Claimant’s attention to the header of the contract where it refers to “Priory Group” and then where it gives the name of employer, before asking whether he was clear who his employer was, to which he replied he was not. The Claimant had expressed no doubt on this point when asked about it in cross-examination and his answer in reexamination not only tended to contradict his previous response, but was also rather stilted in its delivery. I was not persuaded by the Claimant’s later evidence on this point. I am satisfied that when the Claimant accepted this offer of employment, not only was Priory Healthcare Limited in fact his employer, as objectively the offer could not be construed otherwise, but furthermore he knew his employer would be Priory Healthcare Limited. For reasons set out below, the Claimant’s new-found doubt on this appears somewhat self-serving.[23]The Claimant attended an induction on 10 March 2014, which included an explanation of the Priory Group of companies and where Priory Healthcare fitted into that.[24]The Claimant’s employment did not go smoothly and his probationary period appears to have been extended. By a letter of 20 May 2015 from Mrs Fehilly, which said he had failed to attend an earlier meeting, the Claimant was called to a probation review meeting on 28 May 2015. The letter also advised that if he did not attend a decision may be made in his absence. The possible outcomes were stated as: employment confirmed as permanent, probation extended, or dismissal. The footer of the letter included “Priory Healthcare Limited trading as the Priory Hospital Southampton”. The Claimant agreed he received this letter.[25]The Claimant did not attend the 28 May 2015 meeting, providing instead a Med3 from his GP stating he was not fit for work from 22 May to 30 June 2015 because of “low mood / depression”. The Med3 said nothing about whether he was fit to attend a probation review meeting.[26]A letter of 28 May 2015, which the Claimant agreed he received, informed him “your employment with Priory Group has been terminated with effect from 28 May 2015”. The footer again included “Priory Healthcare Limited trading as the Priory Hospital Southampton”. I am satisfied, objectively, that when the Claimant received this letter, most likely on 29 May 2015, it was effective to terminate his employment with Priory Healthcare Limited.[27]When asked about the 28 May 2015 letter in cross-examination, the Claimant appeared uncertain in reading the text. For the avoidance of doubt I read the following passage to the Claimant: As a consequence therefore your employment with Priory Group has been terminated with effect from 28 May 2015. You will be paid one week’s pay in lieu of notice plus any annual leave to which you are entitled. Your P45 and any monies owing will be forwarded to you.[28]In answer to Mrs Reid’s questions, the Claimant said that he understood this letter terminated his employment. He also said he knew he had a right of appeal against that decision, which he exercised. The Claimant expressed no doubt about the meaning of this letter or its effect. He did not say that it was ineffective for any reason.[29]In re-examination, the Claimant was asked about the 28 May 2015 letter. Answering Mr Ryan’s questions, the Claimant said that Priory Central was his employer and that company should have dismissed him. The Claimant could easily have given that evidence in response to questions asked by Mrs Reid and did not. Once again, the Claimant’s answers seemed to be given in a rather stilted manner and I did not find them to be persuasive.[30]The Respondent’s letter of 29 May 2015 reminded the Claimant of his right to appeal against dismissal.[31]In a short handwritten note of 30 May 2015, the Claimant appealed against his dismissal. A letter of 15 June 2015, invited him to attend a “Probationary Termination Appeal”.[32]The Claimant attended the appeal hearing on 23 June 2015 accompanied by his trade union representative, Steve Osborne. Mr Ryan stated repeatedly that the Claimant was misled by the Respondent into attending this meeting on the pretext it was for the purpose of discussing his protected disclosures. In his witness statement, the Claimant says he was instructed to “attend a work meeting on the pretense [sic] part of Protected Disclosures investigation”. I reject entirely the suggestion the Claimant did not know that he was attending an appeal against dismissal hearing, as that is flatly contradicted by what was written at the time, both by the Claimant and the Respondent. The Claimant attended an appeal accompanied by a trade union representative. The content of that meeting, as reflected in the handwritten and typed notes, is consistent with an appeal meeting. The Claimant’s current position is unrealistic and artificial.[33]The notes of the appeal meeting record that the Claimant’s appeal was dismissed. I do not accept that any discussion about the possibility of bank work in the future if the Claimant’s health improved led him to believe that his employment was continuing. The Claimant was, objectively, dismissed and, furthermore, clearly knew that was the position. I am reinforced in this conclusion by the absence, thereafter, of any step taken by the Claimant consistent with continuing employment and his letter to the Respondent of 1 October 2016, in which he asked for a copy of his personnel file and referred to his “termination date May 2015”.[34]In 2016 the Claimant took up new employment with an unrelated employer. When Mrs Reid put to the Claimant that subsequent to his dismissal he had taken up new employment, he said he had, then he didn’t think he had. When reminded he had declared this fact in his claim form, the Claimant changed his evidence again and said he had. The Claimant also agreed with Mrs Reid’s proposition that he would not have got himself a new job if he had believed his was still employed at Priory Hospital Southampton.[35]At no point prior to 2018, did the Claimant ever query the identity of his employer or the fact of his dismissal.[36]By a letter of 25 January 2018, the Claimant wrote to Priory Group Limited, attaching a ‘grounds of complaint’ document, purporting to bring claims against that company, Priory Central, Priory Healthcare and Unison. The document began by asserting that the Claimant was employed by Priory Central between 10 April 2014 and 19 June 2015. This was the first time the Claimant had ever questioned the identity of his employer; also, notably, at that point he still accepted a 2015 EDT. In cross-examination, the Claimant was asked about the circumstances giving rise to this letter and said he had received legal advice. When asked by the Tribunal from whom this advice was taken, the Claimant said it was a friend who was a solicitor. Asked directly whether that person was Mr Ryan, the Claimant said it was not.[37]Mrs Reid asked the Claimant whether it was Mr Ryan who had suggested to him that Priory Central was his employer and he replied “not directly”. When asked by the Tribunal what “not directly” meant, the Claimant said Mr Ryan had “mentioned” Priory Central being his employer. When later asked questions by Mrs Reid about the information in his claim form, including the multiple case numbers cited, the Claimant denied knowing that one of these related to Mr Ryan’s claim and said he was not sure where they came from. Asked by the Tribunal who prepared the claim form, the Claimant said it was Mr Ryan. Asked by the Tribunal whether he wished to revisit his evidence about receiving legal advice, the Claimant said he didn’t get any legal advice. Asked by the Tribunal whether Mr Ryan helped draft the letter of 25 January 2018, the Claimant said yes.[38]I find that the Claimant had no doubt or concern about the identity of his employer, or the fact of his dismissal in May 2015, at least until circa January 2018, when Mr Ryan “mentioned” this to him.[39]The Claimant agreed with Mrs Reid that all of his complaints related to his employment up to May 2015. Law ERA[40]Where a claim is presented outwith the primary limitation period, the Tribunal has a discretion to extend time under ERA, where: 40.1. it was not reasonably practicable for the claimant to have presented the claim within the 3-month period; 40.2. the claims was presented within a further reasonable period. Reasonably Practicable[41]The onus is upon a claimant to prove that is was not “reasonably practicable” for a claim to have presented within the specified time period. This represents a high hurdle to a late claim; see Saunders v Southend on Sea Borough Council [1984] IRLR 119 CA, May LJ giving the judgement of the Court said: 22. In the end, most of the decided cases have been decisions on their own particular facts and must be regarded as such. However we think that one can say that to construe the words 'reasonably practicable' as the equivalent of 'reasonable' is to take a view too favourable to the employee. On the other hand 'reasonably practicable' means more than merely what is reasonably capable physically of being done – different, for instance, from its construction in the context of the legislation relating to factories: compare Marshal v Gotham (1954) AC 360. In the context in which the words are used in the 1978 Consolidation Act, however ineptly as we think, they mean something between these two. Perhaps to read the word 'practicable' as the equivalent of 'feasible' as Sir John Brightman did in Singh's case and to ask colloquially and untrammelled by too much legal logic – 'was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months?' – is the best approach to the correct application of the relevant subsection.[42]A claimant will not establish that it was not reasonably practicable to bring a claim before an Employment Tribunal simply by relying upon ignorance of the right to bring such a claim, or the time in which that might be done, rather the reasonableness of such ignorance will need to be established. In Walls Meat Company Limited v Khan [1978] IRLR 499 CA, Lord Denning MR said: 15. I would venture to take the simple test given by the majority in Dedman's [1973] IRLR 379 case. It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights — or ignorance of the time limit — is not just cause or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences. […] EqA[43]Where a claim is presented outwith the primary limitation period, the Tribunal has a discretion to extend time, where it is just and equitable to do so.[44]Separately, where a series of discriminatory acts are found by the Tribunal to constitute a single continuing act of discrimination, the claim will be in time where the last part of the act was within the 3-month period. Just and Equitable[45]So far as material section 123 of the Equality Act 2010 (“EqA”) provides: (1) Subject to sections 140A and 104B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. […] (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[46]An Employment Tribunal applying section 123 has a broad discretion and, pursuant to the decision in British Coal Corporation v Keeble [1997] IRLR 336 EAT, the factors relevant to its exercise may include those under section 33 of the Limitation Act 1980, in particular: 46.1. the length of and reasons for the delay; 46.2. the extent to which the cogency of the evidence is likely to be affected by the delay; 46.3. the extent to which the party sued had cooperated with any requests for information; 46.4. the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action.[47]The balance of prejudice between the parties will always be an important factor.[48]There is, however, no presumption that time will be extended; see Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 343 CA, per Auld LJ: 25. It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. […][49]Most recently, the Court of Appeal considered the exercise of this discretion in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, per Leggatt LJ: 18. First, it is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble [1997] IRLR 336), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi [2003] EWCA Civ 15; [2003] ICR 800, para 33. […] 19. That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). Continuing Act[50]The question of what amounts to a “continuing act” was considered by the Court of Appeal in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, per Mummery LJ:[52]The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'. [...]Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed. Conclusion Identity of Employer 51. The greater part of the Claimant’s argument in this matter (before and during the hearing), which it is now apparent had been written by or with the support of Mr Ryan, focused upon the challenging the identity of his employer. This approach was initially puzzling as the Claimant’s contract of employment could scarcely have been clearer in naming ‘Priory Healthcare Limited’ and this was still an active, solvent company. The ‘penny dropped’, however, when re-examination of the Claimant revealed where this was all headed. Mr Ryan’s argument was that in May 2015 there had been no valid dismissal at all, as the dismissal letter was sent by the wrong company, a company that had not been his employer, with the result that he had not been validly dismissed at all in 2015 and his employment had continued beyond that date, going on until July 2018, with the result the claims were in time. This all despite the Claimant in the intervening years having done no work, received no pay, sent in no sick notes, had no contact with his managers and having taken up new employment with a different employer in 2016. 52. The fact of the Claimant’s P45 or other tax documents referring to his employer as “Priory Central Services” (the company within the group which managed the payroll) is not material. Employment is a matter of contract. The Claimant’s employer, as set out clearly in his contract of employment, was Priory Healthcare Limited.
Conclusion
[53]For the reasons set out above, I have found the Claimant was employed by Priory Healthcare and he knew that was the case. Correct Respondent[54]Priory Healthcare Limited is the correct respondent to the claim and the parties to the proceedings are amended accordingly. Time[55]The Claimant bring claims under ERA and EqA as against his employer; ERA section 230 and EqA section 83(2). The latest event complained of is his dismissal (assuming in the Claimant’s favour for the purposes of his EqA claims a continuing act).[56]Whilst the Claimant contends his dismissal took place on 17 July 2018, I have found it was 29 May 2015. The Claimant had until 28 August 2015 to present a claim. The Claimant’s claim on 4 October 2018 was more than 3 years out of time (“OOT”). Extension of Time[57]As to whether (for his ERA claims) it was not reasonably practicable for the Claimant to have presented a claim within by 28 August 2015, he has not proven this to be the case. The Claimant has provided no medical evidence beyond the Med3 in May 2015 to suggest he was prevented by ill health from presenting a claim. Subsequent to the GP note, the Claimant wrote to appeal against his dismissal and attended an appeal hearing, where he was supported by his trade union, and actively engaged with the same. Such evidence tends to show the Claimant could have presented a claim then if he had been so inclined. The Claimant’s real argument has been over the date of dismissal. Although not put in this way on his behalf, I have gone on to consider whether a mistake about the dismissal date could result in it not being reasonably practicable. For such an argument to work, the Claimant would need to satisfy me that he was genuinely mistaken and that his mistake was a reasonable one. I have found, however, that the Claimant did know that his employment was terminated in May 2015, he was not in fact labouring under any mistaken belief in that regard. This is not a case where the Claimant failed to bring a claim within 3 months because he believed his employment was continuing. Had it been necessary, I would in any event have found such a belief was unreasonable, because it would fly in the face of the contemporaneous correspondence written by both Claimant and Respondent. Furthermore, I would have ruled the period of 3 years is not a reasonable further period, in the circumstances where no step was taken consistent with continuing employment and the Claimant began new employment with another employer.[58]As to whether (for his EqA claims) it would be just and equitable to extend time, I find it would not for the following reasons: 58.1. no good reason has been given for the delay; 58.2. whilst it is perhaps possible that Mr Ryan has now convinced the Claimant of his argument about being employed by Priory Central, the Claimant must know that was not what he believed at any point prior to January 2018 and I have rejected his evidence to the contrary; 58.3. furthermore, the Claimant gave partial and disingenuous evidence about when, whether and from whom he sought legal advice about these matters; 58.4. The Claimant could have brought claims sooner, he elected not to do so and now advances and unrealistic and artificial explanation for why he did not; 58.5. the respondent would be severely prejudiced if it had to respond to these very late claims: 58.5.1.they are vague, meandering and difficult to follow; 58.5.2.Ms Fehilly, unsurprisingly, had difficulty answering Mr Ryan’s questions about the 23 June 2015 appeal hearing, given it occurred almost 4 years ago; 58.5.3.similar difficulties are likely to be faced by other witnesses who were involved in the Claimant’s employment.[59]Whilst an unsatisfactory explanation for the delay in bringing a claim may not of itself serve to bar an extension of time, where as here the Respondent would be severely prejudiced in responding to the same, then then the interests of justice will not be served by extending time. Jurisdiction[60]The Tribunal has no jurisdiction to determine the Claimant’s late claims and they must be dismissed.
Law
[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. If it is revoked it may be taken again. Application[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 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. Process 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 provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge 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. (3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part. 5. Rule 70 allows for the reconsideration of a judgment where it is in the interests of justice to do so. There is, however, no automatic right for a party to re-argue a claim which has failed. Almost every disappointed litigant would say they believed their case ought to be reconsidered, but it does not follow that such a course of action will be in the interests of justice. 6. The extent of the discretion in this regard was considered by the EAT in Newcastle upon Tyne City Council v Marsden [2010] ICR 743, per Underhill P: 16 Williams v Ferrosan Ltd and Sodexho Ltd v Gibbons clearly show that the extensive case law in relation to rule 34(3)(e) and its predecessors should not be regarded as requiring tribunals when considering applications under that head to apply particular, and restrictive, formulae—such as the “exceptionality” and “procedural mishap” tests which were understood to be prescribed by DG Moncrieff (Farmers) Ltd and Trimble. I would not in any way question that approach or the general message of both decisions. There is in this field as in others a tendency— often denounced but seemingly ineradicable—for broad statutory discretions to become gradually so encrusted with case law that decisions are made by resort to phrases or labels drawn from the authorities rather than on a careful assessment of what justice requires in the particular case. Thus a periodic scraping of the keel is desirable. (The exercise would indeed have been justifiable even apart from the introduction of the overriding objective. It is not as if the principles of the overriding objective were unknown prior to their explicit incorporation in the Rules in 2001: rule 34(3)(e) itself is based squarely on the interests of justice. But I can see why its introduction has commended itself to judges of this tribunal as a useful hook on which to hang an apparent departure from a long stream of previous authority.) 17 But it is important not to throw the baby out with the bath-water. As Rimer LJ observed in Jurkowska v Hlmad Ltd [2008] ICR 841, para 19 it is “basic” “that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may have to be adapted on a case by case basis to meet what are perceived to be the special or exceptional circumstances of a particular case. But they at least provide the structure on the basis of which a just decision can be made.” The principles that underlie such decisions as Flint and Lindsay remain valid, and although those cases should not be regarded as establishing propositions of law giving a conclusive answer in every apparently similar case, they are valuable as drawing attention to those underlying principles. In particular, the weight attached in many of the previous cases to the importance of finality in litigation—or, as Phillips J put it in Flint (at a time when the phrase was fresher than it is now), the view that it is unjust to give the losing party a second bite of the cherry—seems to me entirely appropriate: justice requires an equal regard to the interests and legitimate expectations of both parties, and a successful party should in general be entitled to regard a tribunal’s decision on a substantive issue as final (subject, of course, to appeal). Likewise, I respectfully endorse, for the reasons which he gives, the strong note of caution expressed by Mummery J in Lindsay about entertaining a review on the basis of alleged errors on the part of a representative. Lindsay was referred to in both Williams v Ferrosan Ltd and Sodexho Ltd v Gibbons , but Mummery J’s observations on this aspect were not disapproved: at para 17 of his judgment in Williams (set out at para 14 above) Hooper J said only that the dangers to which Mummery J referred were of less concern on the facts of that particular case. 7. The approach in Marsden was approved by the Court of Appeal when considering the application of rule 70 in the 2013 rules; see Ministry of Justice v Burton [2017] 4 All ER 603 CA, per Elias LJ: [21] An employment tribunal has a power to review a decision 'where it is necessary in the interests of justice': see r 70 of the Employment Tribunals Rules of Procedure (as set out in Sch 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, SI 2013/1237). This was one of the grounds on which a review could be permitted in the earlier incarnation of the rules. However, as Underhill J, as he was, pointed out in Marsden v Council of the City of Newcastle Upon Tyne (2010) UKEAT/0393/09/CEA, [2010] ICR 743 (at [17]) the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] IRLR 277, [1975] ICR 395) which militates against the discretion being exercised too readily; and in Ironsides Ray & Vials v Lindsay [1994] IRLR 318, [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review. In my judgment, these principles are particularly relevant here. 8. Where the Tribunal’s decision is said to involve an error of law, the proper course will be an appeal to the EAT rather than a reconsideration application; see Trimble v Supertravel [1982] IRLR 451 EAT, per Browne-Wilkinson J: 7. As it seems to us the fundamental question is whether or not the Industrial Tribunal's decision that Miss Trimble had failed to mitigate her loss was reached after Miss Trimble had had a fair and proper opportunity to present her case on the point, being aware that it was a point which was in issue. We do not think that it is appropriate for an Industrial Tribunal to review its decision simply because it is said there was an error of law on its face. If the matter has been ventilated and properly argued, then errors of law of that kind fall to be corrected by this Appeal Tribunal. If, on the other hand, due to an oversight or to some procedural occurrence one or other party can with substance say that he has not had a fair opportunity to present his argument on a point of substance, then that is a procedural shortcoming in the proceedings before the Tribunal which, in our view, can be correctly dealt with by a review under Rule 10 however important the point of law of fact may be. In essence, the review procedure enables errors occurring in the course of the proceedings to be corrected but would not normally be appropriate when the proceedings had given both parties a fair opportunity to present their case and the decision had been reached in the light of all relevant argument. Analysis 9. Following the preliminary hearing on 3 May 2019, the Tribunal made decisions with respect to the preliminary issues listed at paragraphs 5.1, 5.2 and 5.3 of the reasons given for the judgment of 4 May 2019. In essence, the Tribunal decided by whom the Claimant had been employed and whether his claims were presented in time. Given the resulting lack of jurisdiction, the issue at 5.4 did not arise. 10. On the Claimant’s reconsideration application, The Tribunal must first consider, pursuant to rule 72(1), the likelihood of the original decision being varied or revoked. For the reasons set out below, I consider there is no reasonable prospect of the original decision being varied or revoked and refuse the Claimant’s application. 11. In paragraphs A1 to A24 of the Claimant’s reconsideration application he makes submissions with respect to factual matters, relating to his employment, the period thereafter and the procedural history of this claim. There is no reasonable prospect of the interests of justice test being satisfied and this allowing for the variation or revocation of the original order: 11.1. the Tribunal was only required to make findings of fact relevant to the issues which fell to be determined on that occasion - essentially, the identity of the Claimant’s employer and time; 11.2. the findings of fact were made after a careful consideration of the witness evidence, the documents and the parties’ submissions; 11.3. the submissions on the facts made in the reconsideration application overlap very substantially with the points made by the Claimant at the hearing; 11.4. the Claimant’s attack on the bona fides of the Respondent’s solicitor and / or her authority to act in the proceedings is not relevant in this regard; 11.5. the Claimant’s repeated observation (at the hearing and in this reconsideration application) that there was no dispute as to the identity of his employer or the correct respondent was, plainly, incorrect; 11.6. the Claimant’s recitation of the procedural history is not complete, nor an accurate summary of the position as can be ascertained from the various case management orders and Tribunal letters and, in any event is not relevant in this regard. 12. In paragraphs B1 to B21 of the Claimant’s reconsideration application he makes submissions with respect to factual matters, relating to the procedural history of this claim. There is no reasonable prospect of the interests of justice test being satisfied and this allowing for the variation or revocation of the original order: 12.1. the Tribunal was only required to make findings of fact relevant to the issues which fell to be determined on that occasion - essentially, the identity of the Claimant’s employer and time; 12.2. the findings of fact were made after a careful consideration of the witness evidence, the documents and the parties’ submissions; 12.3. the submissions on the facts made in the reconsideration application overlap substantially with the points made by the Claimant at the hearing; 12.4. because the Tribunal has no jurisdiction to determine the Claimant’s claim and this has now been dismissed, his “outstanding applications” (save for this reconsideration application) do not fall to be considered; 12.5. there was no “cover-up” with respect to the identity of the Claimant’s employer and correct respondent in the proceedings, on the contrary it was the first issue dealt with at the preliminary hearing; 12.6. the Claimant’s attack on the bona fides of the Respondent’s solicitor and / or her authority to act in the proceedings is not relevant in this regard; 12.7. the Claimant’s recitation of the procedural history is not complete, nor an accurate summary of the position as can be ascertained from the various case management orders and Tribunal letters and, in any event is not relevant in this regard; 12.8. where the Claimant alleges the Tribunal has erred in law, then the matter can only properly be pursued by way of an appeal to the Employment Appeal Tribunal; 12.9. adjustments were made for the Claimant at the hearing on 3 May 2019 to cater for his visual and hearing impairments: 12.9.1.asked about reading documents, the Claimant said that his bifocals would allow him to do this; 12.9.2.asked about his hearing impairment, the Claimant said this was tinnitus and he was told to say if he had any difficulty understanding the proceedings; 12.9.3.after being sworn-in, the Claimant said he had not read his witness statement and the hearing was adjourned to allow him to do so; 12.9.4.when the Claimant returned after the adjournment and stated he still had not read his statement, this was read to him by the Tribunal - slowly, clearly and with frequent pauses for him to confirm the truth of its contents, which he did; 12.9.5.the material parts of documents were read to the Claimant during the hearing when he said and / or it appeared he was having difficulty with them; 12.9.6.questions were repeated to the Claimant during the hearing when he said and / or it appeared he may not have heard them; 12.10. the Claimant’s repeated observation (at the hearing and in this reconsideration application) that there was no dispute as to the identity of his employer or the correct respondent was, plainly, incorrect; 12.11. whether the Respondent could prove a failure of probation was irrelevant, the evidence of dismissal and the Claimant’s understanding he had been dismissed emerged clearly from the contemporaneous documents (including in his own hand) and his answers in crossexamination and to the Tribunal’s questions. 13. Paragraphs C1 to C12 repeat the grounds of appeal (essentially headings) from the first page of the reconsideration application and these points are then developed in paragraphs D1 to D12. There is no reasonable prospect of the interests of justice test being satisfied and this allowing for the variation or revocation of the original order: 13.1. D1 - fraud: 13.1.1.the Claimant complains he was misled by the Tribunal about which issues would be dealt with - this complaint is without foundation as the orders and Tribunal letters are entirely clear and matters were dealt with in accordance with the same; 13.1.2.the suggestion of prejudgment is misconceived; 13.1.3.the issues dealt with at the preliminary hearing were those directed by EJ Livesey, save for that at 5.4 of the reasons which did not arise because the claim was dismissed; 13.2. D2 - respondent not involved with claim: 13.2.1.the Tribunal made findings of fact as to the Claimant’s 13.3. D3 - Employment Tribunal breached statutory law and Employment Tribunal’s Rules of Procedure 2013: 13.3.1.where the Claimant alleges the Tribunal has erred in law, then the matter can only properly be pursued by way of an appeal to the Employment Appeal Tribunal; 13.4. D4 - breach of Equality Act 2010: 13.4.1.where the Claimant alleges the Tribunal has erred in law, then the matter can only properly be pursued by way of an appeal to the Employment Appeal Tribunal; 13.5. D5 - breach of Human Rights Act 1998: 13.5.1.where the Claimant alleges the Tribunal has erred in law, then the matter can only properly be pursued by way of an appeal to the Employment Appeal Tribunal; 13.6. D6 - breach of Data Protection Act 1998: 13.6.1.where the Claimant alleges the Tribunal has erred in law, then the matter can only properly be pursued by way of an appeal to the Employment Appeal Tribunal; 13.7. D7 - breach of Public Interest Disclosure Act 1998: 13.7.1.where the Claimant alleges the Tribunal has erred in law, then the matter can only properly be pursued by way of an appeal to the Employment Appeal Tribunal; 13.8. D8 - Tribunal breached of statutory law and ET Rules of Procedure 2013 twice addressing employer identity issue: 13.8.1.where the Claimant alleges the Tribunal has erred in law, then the matter can only properly be pursued by way of an appeal to the Employment Appeal Tribunal; 13.9. D9 - no party disputed Priory Central Services Ltd being Claimantʼs employer and correct Respondent: 13.9.1.this is factually incorrect, against the Claimant’s case it was argued and the Tribunal found he was employed by Priory Healthcare Limited; 13.10. D10 - no party asserted Priory Healthcare Ltd being Claimantʼs employer: 13.10.1.this is factually incorrect, against the Claimant’s case it was argued and the Tribunal found he was employed by Priory Healthcare Limited; 13.11. D11 - no Claimant dismissal meeting or dismissal in 2015: 13.11.1.the Tribunal decided the Claimant was dismissed with effect from 29 May 2015 and set out the reasons for this finding; 13.11.2.the Claimant’s points on the facts in the reconsideration application were either were made at the preliminary hearing, or could have been made; 13.11.3.the evidence of dismissal and the Claimant’s understanding he had been dismissed emerged clearly from the contemporaneous documents (including in his own hand) and his answers in cross-examination and to the Tribunal’s questions; 13.12. D12 - unlisted party Priory Group No.1 Limited misled Tribunal and obstructed and perverted the course of justice: 13.12.1.the Tribunal made findings of fact as to the Claimant’s 13.12.2.the Claimant’s attack on the bona fides of the Respondent’s solicitor and / or her authority to act in the proceedings is not relevant in this regard. Conclusion 14. The Claimant’s claim and his various contentions were ventilated at length during the preliminary hearing on 3 May 2019. His reconsideration application, in very large measure, seeks to re-argue the points on which he lost. Nothing in the reconsideration application tends to cast doubt on the conclusion reached by the Tribunal originally. There is no reasonable prospect of the interests of justice test being satisfied, such as would allow the variation or revocation of the judgment. 15. In addition, it is in the public interest that there should be finality in litigation, and the interests of justice apply to both sides. 16. Accordingly, I refuse the application for reconsideration pursuant to rule 72(1) because there is no reasonable prospect of the judgment being varied or revoked.