Mr P Pawsey v Mr R Sage and S.T.A.R Domiciliary Care Ltd: 1600416/2022
JUDGMENT
[1]The claims against the First Respondent are withdrawn against him personally, without prejudice to the claims against the Second Respondent, and he is dismissed as a party to these claims.[2]The claimant withdraws his claims for unpaid holiday pay and I is dismissed. Employment Judge T.V. Ryan Date: 19.08.22[1]The claimant was not directly discriminated against by the respondent. The direct decimation claim is dismissed.[2]The claim of detriment on the basis of whistle blowing is not well founded. The claim is dismissed.[3]The Claim for constructive unfair dismissal is not well founded. The claim is dismissed.[4]The Claim for automatic unfair dismissal is not well founded. The claim is dismissed.[5]The Claimant was not wrongfully dismissed. The claim is dismissed.[6]The Respondent’s application for a costs order is refused.REASONS
[1]The Claimant, Mr Pawsey, has made applications, by emails dated 11 May 2023, 18 May 2023 and two dated 17 May 2023, for the reconsideration of the judgment to dismiss his claims.[2]The judgment was sent to the parties on 11 May 2023. The written reasons for that judgment, dated 16 May 2023, were sent to the parties on 17 May 2023. The applications for reconsideration were made within 14 days of the reasons being sent to the parties and are therefore in time.[3]The Tribunal has the power to reconsider a judgment where it is necessary in the interests of justice to do so, procedure rule 70.[4]Procedure rule 72(1) says that where the Judge considers there is no reasonable prospect of the original decision being varied or revoked an application for reconsideration shall be refused.[5]Mr Pawsey sets out different grounds for the reconsideration of the judgement in each of his emails and I deal with each of the individual emails and their grounds below. Email 1, dated 11 May 2023[6]In this email Mr Pawsey has set out 8 numbered paragraphs containing grounds for reconsideration of the judgement. Case No: 1600416/2022 11.6C Judgment – Reconsideration refused – claimant - rule 72[7]The first ground, paragraph 1, is that the Tribunal got the law wrong. The paragraph does not state what law the Claimant says was incorrectly applied or what the error was. This is not surprising as at this stage the Claimant did not have the benefit of the full written reasons of the Tribunal. Mr Pawsey addressed the written reasons in more detail in his subsequent emails, but I conclude there is no reasonable prospect of the original decision being varied or revoked on this ground as set out in this email.[8]The second ground relied on in this email is that the correct procedures were not followed, specifically that the Tribunal rushed the Claimant and did not provide sufficient time or respect to Mr Pawsey. This is expressed in paragraphs 2 and 6. There is also a suggestion in paragraph 8 that the Tribunal did not act with procedural fairness by delaying the provision of the oral decision by an hour. Part of the overriding objective of the procedure rules (Rule 2) which must be considered in every procedural decision the Tribunal makes is avoiding delay, so far as is compatible with proper consideration of the issues. In light of that I conclude that there is no reasonable prospect of the original decision being varied or revoked on this ground.[9]The third ground, at paragraph 3, appears to be that the Tribunal had no evidence to support its conclusions. At the point this application was made the Claimant did not have the benefit of the full written reasons and it is understandable that Mr Pawsey may not have had a full recollection of the reasons provided by the Tribunal for coming to their conclusions. I conclude this ground of the application seeks to re-litigate matters that were decided by the Tribunal and there is no reasonable prospect of the original decision being varied or revoked on this ground.[10]In his fourth ground the Claimant alleges bias towards the Respondent on behalf of the Tribunal. This is expressed in paragraphs 4, 6 and 8. There is nothing in those paragraphs that would be sufficient to create in the mind of a fair-minded and informed objective observer a doubt about the Tribunal’s impartiality. I have concluded there is no reasonable prospect of the original decision being varied or revoked on this ground.[11]The fifth ground, in paragraph 7, is that the Tribunal ignored a serious matter in its decision, putting aside that the Claimant at this point did not have the written reasons, the claims and issues for the Tribunal to decide were those set out in the agreed list of issues and in light of that I conclude that there is no reasonable prospect of the original decision being varied or revoked on this ground.[12]Paragraph 5 of the email is a request for written reasons from the Claimant. These were provided by the Tribunal on 17 May 2023. This is not a ground for reconsideration. Email 2, dated 17 May 2023[13]The first email sent on 17 May 2023 at 18:23, following the written reasons, has 2 grounds for reconsideration in it.[14]The first of the grounds I have identified is that the Tribunal made an error of law in that was not entitled to conclude that Mr Pawsey made protected Case No: 1600416/2022 11.6C Judgment – Reconsideration refused – claimant - rule 72 disclosures but then go on to conclude that he was not subjected to a detriment. The list of issues made clear that these are two different questions for the Tribunal to address and that a conclusion of detriment would not automatically follow a finding that protected disclosures had been made. I conclude that there is no reasonable prospect of the original decision being varied or revoked on this ground.[15]The second ground I have identified in this email is an allegation of bias against Mr Pawsey on the grounds he is a litigant in person without a law degree. There is nothing in this email that would be sufficient to create in the mind of a fair-minded and informed objective observer a doubt about the Tribunal’s impartiality. I have concluded there is no reasonable prospect of the original decision being varied or revoked on this ground. Email 3, dated 17 May 2023[16]The second email of the 17 May 2023, sent at 18:33, has one ground for reconsideration: that the Tribunal made an error of law by considering the claim for wrongful dismissal as the claim was for constructive dismissal only. Wrongful dismissal was an issue in the agreed list of issues before the Tribunal and I therefore conclude there is no reasonable prospect of the original decision being varied or revoked on this ground. Email 4, dated 18 May 2023[17]In this email Mr Pawsey sets out his grounds in named sections rather than numbered paragraphs and I address each of those below.[18]In each of the sections headed “Supervisions”, “Discrimination”, and “Constructive dismissal”, Mr Pawsey appears to be argue that Tribunal failed to properly consider the evidence when making their decision. I conclude this ground of the application seeks to re-litigate matters that were decided by the Tribunal and there is no reasonable prospect of the original decision being varied or revoked on this ground.[19]In the section headed “Breach of contract”, Mr Pawsey appears to argue that the Tribunal made an error of law by not considering that it is illegal not to provide a contract to an employee in the first 2 months of their employment. While it is possible the Tribunal to make an award to a claimant where they are not provided with a contract until after Tribunal proceedings have begun and there are claims that can be referred to a Tribunal where no contract is provided at all, those were not claims that were brought by the Claimant in this case. I conclude there is no reasonable prospect of the original decision being varied or revoked on this ground.[20]There is a section header that reads “Faulse references is clear!”, but there is no expansion on what the Claimant means and I can not identify a specific ground from the information provided.[21]The final section is headed “Conduct of the tribunal and there biased ways towards the respondent” and I have been able to identify several grounds in this section. Case No: 1600416/2022 11.6C Judgment – Reconsideration refused – claimant - rule 72[22]The first is that the Tribunal made procedural errors by allowing the Respondent to provide additional evidence and by not allowing the Claimant to play recordings of the meetings. In assessing this ground, I have considered the reasons provided by the Tribunal for making those procedural decisions as set out in the full written reasons and I conclude that there is no reasonable prospect of the original decision being varied or revoked on this ground.[23]The next ground I have identified in that section is that the Tribunal should have placed less weight on that evidence as it could have been 1) tampered with or, 2) completely made up. I have carefully considered what the Claimant says in this paragraph as these were not points raised during the hearing. I conclude this ground of the application seeks to re-litigate matters that were decided by the Tribunal and there is no reasonable prospect of the original decision being varied or revoked on this ground.[24]The next ground that I have identified in that section is an allegation of bias towards the Respondent and corruption on the part of the Tribunal. However, there is nothing in this email that would be sufficient to create in the mind of a fair-minded and informed objective observer a doubt about the Tribunal’s impartiality. I have concluded there is no reasonable prospect of the original decision being varied or revoked on this ground.[25]The final ground I have identified in this email is contained in the final bold underline text in the final sentences. In my view this ground repeats that I have identified at paragraph 14 above: that the Tribunal made an error of law in that was not entitled to conclude that Mr Pawsey made protected disclosures but then go on to find that he was not subjected to a detriment. For the same reasons I have set out in that paragraph, I conclude that there is no reasonable prospect of the original decision being varied or revoked on this ground.