Mr A Pathan v DHL Supply Chain Ltd and Extra Personnel Ltd T/a jobandtalent: 2216721/2024
JUDGMENT
[1]The claimant’s claim of harassment related to race is struck out as having no reasonable prospects of success. _____________________________ Employment Judge Date: 6 February 2025[2]JUDGMENT SENT TO THE PARTIES ON 13 February 2025 ..................................................................................... ...................................................................................... FOR THE TRIBUNAL OFFICE[3]Case Number: 2216721/2024 EMPLOYMENT TRIBUNALS Claimant: Mr A Pathan Respondent:(1) DHL Supply Chain Limited(2) Extra Personnel Limited trading/as jobandtalent On: 12 February 2025 Before:REASONS
[1]By an application dated 6 February 2025, the claimant sought a reconsideration of the Tribunal’s decision dated 6 February 2025 to strike out his claim for harassment related to race as having no reasonable prospects of success. The claimant’s reason for this application was that CCTV evidence of the incident in question. “is relevant evidence that should be reviewed before a final decision.”The Law
[2]The Tribunal has the power to reconsider its judgments under rule 68 of the Employment Tribunal Procedure Rules 2024 where it is “necessary in the interests of justice to do so.” Examples from case law of circumstances where the interests of justice might require a reconsideration are: where relevant evidence subsequently comes to light which was not available at the Case Number: 2216721/2024 time of the hearing, where a material error in the procedure at a hearing leads to an injustice, where a party did not have notice of a hearing or where the parties and Tribunal proceed on the basis of a mistaken understanding of the law. The Rules themselves do not define such circumstances (although used to do so), so the Tribunal has a wide discretion, although the “interests of justice” refers to the interests of both parties, not just the disappointed party (Redding v EMI Leisure Ltd EAT 262/81).[3]Pursuant to rule 70 of the 2024 Rules, if an Employment Judge considers that there is no reasonable prospect of the original decision being varied or revoked, there is no need to invite the parties’ views as to whether the application can be determined on paper or whether a further hearing is needed.[4]The reconsideration procedure should not be used simply as an opportunity for an unsuccessful litigant to re-argue his or her case. There is a public interest in the finality of litigation, which is not furthered if parties are permitted to make more detailed or different submissions to those which they made at the first hearing, to put their claim on a different basis in light of the Tribunal’s findings or to adduce evidence which was reasonably available to them before the determination was made.[5]Any power under the 2024 Rules should be exercised in accordance with the overriding objective in rule 3. This includes ensuring that parties are on an equal footing.Relevant Facts
[6]At the hearing on 6 February 2025 the Tribunal was aware that the claimant wished to view the CCTV evidence of an incident between himself and a colleague on 30 November 2024, which formed the subject matter of his harassment claim. He sought an order for specific disclosure of this evidence, which had not been determined at the time of the hearing. The application was made at a time when routine discovery had not taken place.[7]At the start of the hearing on 6 February 2025, the Judge specifically asked the claimant what he expected the CCTV evidence to show. The claimant responded as follows (according to the Judge’s written notes): the CCTV would show Mr Abdi “intimidating and filming me and me confronting him and him deleting the video. He [Mr Abdi] talked on the phone in the lobby. They were two guys talking in the Somali language,”[8]As the Judge explained to the claimant at the start of the hearing, a strike out application would be approached on the basis that the claimant’s evidence would be “taken at its highest”, that is to say, assumed to be correct for the purposes of the strike out application. This meant that the hearing could proceed fairly without the Judge’s viewing the video evidence, because the assumption would be made that the CCTV evidence would support the claimant’s account in the way he described. Case Number: 2216721/2024[9]Quite apart from the Judge’s reassurance to the claimant at the start of the hearing that she would assume that the CCTV evidence would support the claimant’s account for the purposes of the strike out application, the reasons for her decision provided orally re-iterated this in the following terms: [The Tribunal] “will assume that the CCTV evidence corroborates the claimant’s factual account. As such, it is not necessary for the CCTV evidence to be viewed and there is no reason to depart from the usual rule in relation to discovery, that it should take place mutually at a time directed by the Tribunal.” This application for a reconsideration is simply an attempt by the claimant to re-argue his case making submissions which either were or could have been made at the hearing on the 6th February 2025.[10]The focus of the respondents’ submissions for the purposes of the strike out application was not as to whether the events the claimant described took place, but as to whether the Tribunal could conclude that the conduct of Mr Abdi was related to the claimant’s race. It has never been the claimant’s case that the words used by Mr Abdi related to his race. The claimant argued that Mr Abdi’s speaking to a third party in the Somali language was itself an act of racial harassment of the claimant, alternatively, indicated that Mr Abdi’s earlier videoing the claimant and abusing him was related to his race. The Tribunal considered those contentions had no reasonable prospects of success. On the claimant’s own account of what the CCTV would show, it had no relevance to central question for the Tribunal’s decision concerning his harassment claim. As such, there is no prospects of the Tribunal’s varying or revoking its judgment in light of the CCTV evidence.[11]The claimant is reminded of the Tribunal’s observation to him at the end of the hearing that the CCTV evidence is unlikely to be relevant to the remaining issues which the Tribunal has to decide in his case. As to the second respondent’s application for its costs against the claimant, this will be determined at the next hearing, as requested in the application.