Mr C Mallon v Highfield Professional Solutions Ltd: 1406261/2023

EMPLOYMENT TRIBUNALS

Case No 1406261/2023

Between

Mr C MallonClaimant

Highfield Professional Solutions Ltd RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Livesey

In person for claimant

Mr Rozycki (instructed by counsel) for respondent

Date 11 March 2025

JUDGMENT

[1]The Claimant’s complaint of harassment under s. 26 of the Equality Act is dismissed under rule 37 as having no reasonable prospects of success.

[2]The remaining complaints proceed in accordance with the Order of event date and that of 5 November 2024.

REASONS

[1]The Claimant has applied for a reconsideration of the Judgment dated 19 December 2024 which was sent to the parties on 31 December 2024. The grounds are set out in his application of 14 January 2025. Relevant principles

[2]Under rule 69 of the Tribunal Procedure Rules 2024, an application for reconsideration must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received inside the relevant time limit.

[3]The grounds for reconsideration are only those set out within rule 68, namely that it is necessary in the interests of justice to do so. That allows for a ‘broad discretion’ to be exercised (Outasight VB Ltd-v-Brown

UKEAT/0253/14

) and, although the list of factors that may be relevant will be fact sensitive in every case, it was clear form the decision in Outasight that finality in litigation is invariably going to be one such factor. That has been a thread which has been common to many of the authorities in this area, stretching back, perhaps, to Phillips J’s judgment in Flint-v-Eastern Electricity Board

[1975] ICR 395

. Most recently, in Phipps-v-Priory Education Services Ltd

[2023] EWCA Civ 652

, the Court of Appeal encouraged an approach to rule 70 which involved the weighing of the injustice that the parties would suffer if a reconsideration application was allowed or refused, but by also “giving weight to the public interest in the finality of litigation.” (paragraph 36). Discussion and conclusion

[4]In his application, the Claimant has raised a number of grounds. They have been considered separately;a. The test under rule 37 (now rule 38 of the Employment Procedure Rules 2024), as applied, was ‘overly stringent’ (paragraph 4 of the application); Nothing within paragraphs 4 – 8 of the Reasons has been identified by the Claimant as a misstatement of the relevant principles. If, as he has suggested, the rule was applied in an ‘overly stringent’ manner, such an interpretation ought to have been more favourable to him;

b. The decision was reached without a full consideration of the discrepancy between the job criteria and the ‘post-hoc requirements which were introduced during the recruitment process’ (paragraphs 5 and 7); This part of the application is understood to refer to paragraph 16 of the Reasons and the reference to Ms Lockyear having regarded ‘evidence of managing contracts, budgets and/or staff’ as ‘essential’ [79] and paragraph 11, which referred to the absence of clearly defined ‘essential’ or ‘desirable’ criteria within the advertisement. The advert referred to ‘demonstrable experience’ of certain things [58]. Job Descriptions and/or adverts frequently differentiate between ‘essential’ and ‘desirable’ skills, qualifications and/or qualities. This advert did not do so in such clear terms, but it has to be accepted that the word ‘demonstrable’ closely equated with requirements which might have been regarded as essential. The difference between the use of those words in the advert and Ms Lockyear’s email could not, however, have been sufficient to save the complaints under s. 26 since the Claimant’s arguments have not addressed the reasons why those complaints were not considered feasible under s. 26 within paragraph 1.23.5 of the Case Summary. Even if the discrepancy that he contends existed, the problems identified within that paragraph of the Reasons would not have been overcome;

c. Insufficient regard was made of the impact of the Claimant’s disability upon his career progression (paragraph 6); Despite the fact that the Claimant’s alleged inability to attain the relevant qualifications and/or experience because of his disability did not actually form part of his grounds of complaint within the claim form, that argument was nevertheless identified within the issues in the Case Summary of 4 October 2024 as a complaint under s. 15. It was considered as such on 19 December (see paragraph 1.23.2 of the Reasons) and, if the deposit is paid, that complaint will proceed on that basis. For the reasons set out within paragraph 1.23.5, it could not amount to harassment.

[5]Accordingly, the application for reconsideration pursuant to rule 70 (2) is refused because there is no reasonable prospect of the Judgment being varied or revoked.

[1]The claimant was ordered to pay a deposit of £200 in respect of each of the complaints (a total of £800) following a preliminary hearing held on 19 December 2024. The Order was sent to the claimant on 31 December 2024. The claimant has failed to pay this deposit. The complaint of direct discrimination, discrimination arising from disability, indirect discrimination and a failure to make reasonable adjustments are therefore struck out under rule 40(4) of the Employment Tribunal Procedure Rules 2024.

[2]The remaining claims proceed to hearing in accordance with the Case Management Order of 19 December 2024. Approved by