Mr S Piasecki v Imperial Treasure (UK) Co Ltd: 2208839/2022
EMPLOYMENT TRIBUNALS
Case No 2208839/2022
Between
Mr S PiaseckiClaimantImperial Treasure (UK) Co LimitedRespondent
Before
Employment Judge Akhtar
Members
Mr Chaumont-RambertMs ClarkeDate 12 May 2024
JUDGMENT
[1]The complaints of harassment related to race are not well-founded and are dismissed. Case No. 2208839/2022[2]The complaints of direct and indirect race discrimination are not well-founded and are dismissed.[3]The complaint of breach of contract in relation to notice pay and tronc pay are not well-founded and are dismissed.
REASONS
[1]I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment dismissing his claims. That application is contained in an email dated 6 June 2024.
The Law
[2]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[3]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked. Case No: 2208839/2022[4]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “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] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [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.”[5]Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”[6]In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely, to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. Case No: 2208839/2022 The Application[7]The claimant’s grounds for reconsideration are primarily allegations of procedural unfairness, which I summarise as follows:(i) Late delivery and incomplete Bundle, with missing documents;(ii) fragmented and inadequate documentation;(iii) Hearing format confusion; (iv)disturbances and language Issues caused by interpreter and respondent’s counsel interruptions.[8]To the extent any of these matters were raised at the hearing, I am satisfied they were appropriately addressed at the time. The hearing was conducted fairly and in my judgment there were no procedural, administrative or legal errors.[9]I now consider each matter in turn that the claimant raises as a ground for reconsideration. Firstly, in respect of the bundle, from the outset the claimant confirmed he had access to the electronic bundle. The claimant referred to the bundle in his evidence and in cross-examination. It is not unusual for a litigant in person to require assistance from time to time in locating a document, however, at no point did the claimant suggest he was unable to deal with matters appropriately due to difficulties with navigating the bundle. Additionally, the claimant refers to missing documents but provides no detail in respect of such documents. It is also pertinent that he made no application to add any such documents during the course of the hearing. 9. With regard to the change of format of the hearing from in person to remote, this was a last minute listing change due to the non-availability of members for an ‘in person’ hearing. The claimant did not seek to challenge the change of format and whilst there was a slightly delayed start, this did not impact negatively on the hearing. Case No: 2208839/2022[10]With regard to the use of an interpreter, there is simply no evidence to suggest that the respondent’s witness did not require an interpreter. On the contrary, proceeding without an interpreter in circumstances where a witness had indicated difficulties with the English language would have resulted in an unfair hearing.[11]I also conclude, there were no inappropriate or excessive interruptions by respondent’s counsel. Had this been the case, this would have been addressed at the hearing. 11. The remaining overarching point raised by the claimant in respect of fairness and considering all of the evidence, is an attempt to re-open issues of fact on which the Tribunal heard evidence from both sides and made a determination. In that sense this represents a “second bite at the cherry” which undermines the principle of finality. Such attempts have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing. A Tribunal will not reconsider a finding of fact just because the claimant wishes it had gone in his favour. Conclusion 9. Having considered all the points made by the claimant, I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The hearing was conducted fairly with the points of significance properly considered and addressed at the hearing. The application for reconsideration is refused. _____________________ Employment Judge Akhtar DATE: 9 October 2024