Mr P SullivanClaimantRTC Education LimitedRespondent
Before
Employment Judge MillnsIn person for claimantMr Mizan-ur Rahman (Deputy Director (instructed by People)) for respondentDate 16 December 2025
JUDGMENT
[1]The Claimant’s application to have the respondent’s Response struck out pursuant to Rule 37(1)(a) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 is refused. The Response is not struck out.
REASONS
[1]At the end of the hearing following summary oral reasons, the Claimant made an application for full written reasons; these are those reasons.[2]By application dated 7 June 2024 the Claimant made an application to strike out the Response as having no reasonable prospects of success. Before considering that application, it is necessary to set out some of the procedural background.[3]The first preliminary hearing took place on 26 September 2024 before Employment Judge J Bromige. The parties who attended that hearing were also present at this hearing. Paragraph 17 & 18 of Employment Judge J Bromige’s order (‘the Order’) stated as follows: 17.Having confirmed the issues in the case, I made the following directions working towards an open preliminary hearing.a. By 30th September 2024, the Respondent is to provide to the Claimant copies of all emails sent by the Claimant to the Respondent’s HR Department between 15th and 19th January 2024. This direction for specific disclosure is to allow the parties to consider what the Claimant may or may not have said in respect of the s.104 ERA 1996 claim.b. By 10th October 2024, the Claimant is to provide to the Respondent and the Tribunal in writing: i. Confirmation of the basis of the s.104 ERA 1996; ii. Whether he is pursuing any additional complaints of victimisation. If so, he must set out what the detriment is, who the alleged perpetrator is, and when this occurred; iii. Whether he is pursuing any additional complaints of less favourable treatment (direct discrimination). If so, he must confirm what the less favourable treatment is, which protected characteristic he relies upon, who the alleged perpetrator is and when this occurred; iv. An application to amend, which must cover the direct belief discrimination claim, as well as any further allegations of less favourable treatment or victimisation detriment beyond the pleaded dismissal.c. By 24th October 2024, the Respondent is to provide any comments on the application to amend to both the Tribunal and the Claimant. 18.There will then be a 1 day open preliminary hearing via CVP on 29th November 2024. The purpose of the preliminary hearing will be: a. To consider the Claimant’s application for strike out; b. To consider, on the Tribunal’s own volition, striking out the Claimant’s s.104 ERA 1996 claim (this depends on whether the Claimant continues to pursue this claim, and the clarification he provides as to the nature of the assertion of statutory right); c. Any application to amend the Claimant’s claim;d. Further case management for preparation of the final hearing[4]The Respondent complied with paragraph 17a. of the Order. The Claimant did not comply with paragraph 17b. of the Order and confirmed the same in a written response to an order of Employment Judge Woodhead (dated 21 November 2021) which asked the parties for an update on compliance with the Order.[5]At today’s hearing the Claimant made an application for an extension of time to comply with paragraph 17b. of the Order. That application was granted.[6]At today’s hearing the Claimant withdrew his complaint under s.104 ERA 1996 and I have issued an order dismissing that claim upon withdrawal by the Claimant.[7]The parties were reminded that the application to strike out the Response could only consider the case as currently pleaded. The Claimant explained that he intends to apply to amend his claim to include a claim that the Respondent dismissed him because of a perception that he was non-supportive of the Conservative and Unionist Party (a perception of a political belief). I noted that the claims as currently pleaded are that the dismissal was a wrongful dismissal (i.e. in breach of contract) and/or that the claimant was dismissed as an act of direct race discrimination and/or victimisation.[8]The Claimant’s application to strike out the Response was helpfully set out in a one-page skeleton argument with extracts from Harvey on Industrial Relations and Employment Law (on striking out a case for having not reasonable prospect of success where the claim involves a crucial core of disputed facts). The Claimant also provided a copy of his letter of termination of employment dated 18 January 2024 and a pay slip dated 31 January 2024. I heard oral submissions from the Claimant and from Mr Rahman for the respondent. I also gave the Claimant the opportunity to respond to Mr Rahman’s submissions.[9]The Claimant was critical of the Respondent for not providing a written response to his application to strike out the Response and suggested that this failure was an attempt to deliberately surprise the Claimant by making oral submissions today.[10]I note that no order was made for the Respondent to provide a response to the application. During his brief submissions, nothing was said by Mr Rahman which caused any significant prejudice to the Claimant. I gave the Claimant an opportunity to reply to what Mr Rahman said, which he took. Further, it was not suggested by the Claimant that his application could not continue in light of anything said by Mr Rahman. I bear in mind the Claimant’s submission that he would have preferred a response to his application to have been set out in writing and that had he seen such a response he would have relied on further documentation. I reminded the parties that whilst documentation may be relevant to determine strike out applications, the tribunal must be mindful not to conduct a mini trial on the evidence. The relevant legal principles[11]Striking out 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success;....[12]The threshold for striking out a claim or response for having no reasonable prospects of success is high. In Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330, the Court of Appeal held that where there are facts in dispute, it would only be "very exceptionally" that a case should be struck out without the evidence being tested. It upheld the EAT's decision that tribunals should not be overzealous in striking out a case as having no reasonable prospect of success, unless the facts as alleged by the claimant disclosed no arguable case in law.[13]In Balls v Downham Market High School & College UKEAT/0343/10, the EAT held that it is a power that should be exercised only after a careful consideration of all the available material, including the evidence put forward by the parties and the documentation on the employment tribunal's file. In Balls, the EAT stressed that, "no reasonable prospects of success" does not mean the claimant's claim is likely to fail, or it is possible the claim will fail, and it is not a test that can be determined by considering whether the other party's version of disputed events is more likely to be believed. It is a high test: there must be no reasonable prospects of success.[14]The authorities on strike out of unfair dismissal claims were reviewed by the Inner House of the Court of Session in Tayside Public Transport Company Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755 (CS), which found that: "In almost every case the decision in an unfair dismissal claim is fact-sensitive. Therefore where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the tribunal to conduct an impromptu trial of the facts (ED & F Mann Liquid Products Ltd v Patel [2002] EWCA Civ 1550 ). There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example, where the alleged facts are conclusively disproved by the productions (Mann Liquid Products v Patel; Ezsias v North Glamorgan NHS Trust)."[15]In Romanowska v Aspirations Care Ltd UKEAT/0015/14 the EAT (Langstaff, P) observed that: "Sometimes it may be obvious that, taking the facts at their highest in favour of the claimant, as they would have to be if no evidence were to be heard, the claim simply could not succeed on the legal basis on which it has been put forward. Where, however, there is a dispute of fact, then unless there are good reasons, indeed powerful ones, for supposing that the claimant’s view of the facts is simply unsustainable, it is difficult to see how justice can be done between the parties without hearing the evidence in order to resolve the conflict of fact which has arisen." (Paragraph 1.)[16]When considering whether to strike out a tribunal must approach the matter on a two-stage basis. Firstly, consider whether any of the grounds set out in rule 37(1)(a) to (e) have been established. Secondly, having identified any established ground(s), the tribunal must then decide whether to exercise its discretion to strike out, given the permissive nature of the rule.[17]The Claimant’s application is made under Rule 37(1)(a) on the grounds that the Response has no reasonable prospect of success. I bear in mind that the first part of the two-stage test is to consider whether the Response has no reasonable prospect of success.[18]The basis of the Claimant’s application is that paragraph 8 of the Response states that the Respondent dismissed the Claimant because of an absence on Sunday 14 January 2024 when in fact the Respondent accepted that the Claimant worked on Sunday 14 January 2024 because it paid him for that day. In short, the Claimant says the factual assertion in the Response that he did not work on that day is wrong.[19]Paragraph 8 of the Response states as follows: 8. The Claimant was a law lecturer. His usual working week was Monday, Tuesday, Wednesday, Saturday and Sunday, with Thursday and Friday classified as days off. The Claimant attended a funeral on Tuesday 9 January 2024, for which he booked annual leave in advance and was approved by the Respondent. He then failed to work, attend urgent meetings, make meaningful contact, or log onto MS Teams on Wednesday, 10 January, Saturday, 13 January, Sunday 14 January, Monday, 15 January and Tuesday, 16 January.[20]In trying to establish as a fact that the Claimant did not work on Sunday 14 January 2024, the Claimant submits that the Respondent’s position is totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The Claimant further submitted that as this fact must be resolved in his favour it shows that a central pleaded fact of the Response is untrue. The Claimant further stated that paragraph 8 of the Response shows that Respondent dismissed him for absence on 14 January 2024.[21]I asked the Claimant to explain, assuming it was clear that he in fact worked on 14 January 2024, how it would necessarily follow that the Respondent’s Response would have no reasonable prospects of success. The Claimant’s response this this question was that he was ‘not sure.’[22]Mr Rahman submitted that the Respondent did not dispute that the Claimant worked for part of the day on Sunday 14 January 2024 and did not dispute that the Respondent paid the Claimant for that day. When clarifying what was meant by paragraph 8 of the Response, Mr Rahman said that on 14 January 2024 the Claimant failed to contact the Respondent or attend urgent meetings about marking work, but it was accepted he did do some work (online teaching). Mr Rahman further stated that the decision to dismiss involved 4 other dates as set out in paragraph 8 of the Response.[23]The Claimant is therefore correct that the Respondent accepted at the time (as Mr Rahman accepted today) that the Claimant worked on Sunday 14 January 2024 and that he was paid for that work by the Respondent. Whilst paragraph 8 does not clearly reflect what Mr Rahman said in submissions today (i.e. that the Claimant did work that day) I do not agree with the Claimant’s submission that paragraph 8 of the Response specifically and clearly identifies that part of the reason for his dismissal was the Claimant’s absence on 14 January 2023. The Response is not clear on the point; it does not explicitly set out what specific absences/misconduct the Respondent took into account when coming to the decision to dismiss. In its Response the Respondent quotes the dismissal letter dated 18 January 2024, which I note refers to the Claimant having sent an email on 16 January 2024 to the Respondent confirming that he had been working and teaching online on Sunday 14 January 2023. However, neither the Response nor the dismissal letter go on to say how the Respondent viewed that explanation in terms of the decision to dismiss. I also note that the dismissal letter refers to 4 other dates when the Claimant was absent which form part of the disciplinary charges.[24]I keep in mind that it is only in exceptional circumstances that strike out is warranted. I appreciate that the Claimant believes that the ‘central facts’ in the Respondent’s pleaded case must be found to be untrue. In so far as paragraph 8 of the Response asserts that the Claimant did not work at all on 14 January 2023, this is not in fact the Respondent’s case, as confirmed by Mr Rahman. However, I do not see that this is such a central fact as to be determinative of the claim of a whole to warrant strike out of the Response.[25]The claim as currently pleaded and clarified is that the Claimant was dismissed wrongfully and/or because of a perception that he was Irish or Northern Irish and/or was an act of victimisation. The fact that the Claimant worked on 14 January 2024 and was paid for that date is not the end of the story i.e. it does not mean that the Response has no reasonable prospects of success in defending those claims. The Claimant was unable to say how that (now conceded) fact means that the Response has no reasonable prospects.[26]The burden of proof in discrimination complaints means that the initial burden rests on the Claimant to prove facts that give rise to an inference of discrimination or that discrimination has occurred in the absence of any other explanation. Even if the Tribunal rejects the Respondent’s reasons for dismissal (misconduct) that does not necessarily mean that the Claimant will be able to discharge that burden. This is not an open and shut case which turns on this finding of fact. This is not an exceptional case warranting striking out the Response.[27]Section 13 defines direct discrimination as follows:- “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favorably than A treats or would treat others. Race and religion or belief are protected characteristics.[28]Section 13 focuses on “less favourable” treatment. A claimant must compare his treatment with that of another actual or hypothetical person who does not share the same protected characteristic. In comparing whether the employee has been treated less favourably than another, section 23 of the Equality Act provides that “on a comparison of cases for the purposes of section 13… there must be no material difference between the circumstances relating to each case.” It is not necessary for all the circumstances to be the same provided that the circumstances are materially similar. In other words, for the comparison to be valid like must be compared with like.[29]As to victimisation section 27 provides that “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because– (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act– (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving information or making a false allegation is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.”[32]When considering whether a claimant has been subjected to particular treatment ‘because’ he has done or may do a protected act, the Tribunal must focus on “the real reason, the core reason” for the treatment; a ‘but for’ causal test is not appropriate: (Chief Constable of West Yorkshire v Khan [2001] ICR 1065 HL). On the other hand, the fact of the protected act need not be the sole reason: it is enough if it contributed materially to the outcome (see Nagarajan, cited above).[33]The burden of proof is set out at Section 136. It is for the Claimant to prove facts from which the Tribunal could conclude in the absence of any other explanation that the Respondent has contravened the Equality Act. Once the Claimant has shown these primary facts then the burden shifts to the Respondent, and discrimination is presumed unless the Respondent can show otherwise.[34]The principles for determining whether there has been a breach of the Equality Act 2010 were set out in Islington London Borough Council -- vLadele 2009 ICR 387. The application of the principles identified in Igen Ltd v Wong [2005] EWCA Civ 142, [2005] ICR 93, has been the subject of important case law including Madarassy v Nomura International plc [2007] EWCA Civ 33, [2007] ICR 867 and Hewage v Grampian Health Board [2012] IRLR 870 SC.. At stage one, the complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful. So, the prima facie case must be proved, and it is for the claimant to discharge that burden. In considering at that stage what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. The purpose of that assumption is to shift the burden of proof onto the respondent at the second stage. It does not diminish in any way the burden of proof at the first stage, when the tribunal is looking at the primary facts that must be established. But it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. They have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.[35]At the first stage the claimant must prove “a prima facie case”. That does not mean simply proving “facts from which the tribunal could conclude that the respondent ‘could have’ committed an unlawful act of discrimination”. As was said by the Court of Appel in Madarassy v Nomura International 2007 ICR 867 and approved by the Supreme Court in Hewage v Grampian Health Board 2012 ICR 1054 he continued (pp. 878-9): “56. … “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude that on the balance of probabilities the Respondent had committed an act of unlawful discrimination.” Submissions[36]The Claimant submitted that he was not guilty of misconduct, let alone gross misconduct. The Respondent had failed to carry out an adequate or proper investigation. The Respondent failed to consider the Claimant’s email in which he said he had not been absent from work and had taught a class on Sunday 14 January. Further, the decision had been made by Ms Walsh against whom he had, prior to disciplinary meeting notified the Respondent that he “may do” a protected act. There was no written evidence of substantiating the allegation against him. Insufficient notice was provided of the disciplinary hearing.[37]Given these another unfairness is the Tribunal should draw an inference that the true reason for dismissal was discrimination and victimisation. The Claimant was dismissed because ofa. the Respondent’s perception that the Claimant is Irish and/or Northern Irish and/or not British;b. the Respondent’s perception that his political beliefs “would not be attributed to the Labour Party or perceived as being left-wing not aligning with not supportive of the Conservative and Unionist party. the protection afforded by the equality act extended to people not holding a belief. The Respondent perceived that he had a lack of belief in the Conservative partyc. The Respondent’s belief that the Claimant had done or may do a protected act.[38]The Respondent submits that the Claimant had not established a prima face case of discrimination. There was no evidence to suggest that the Claimant had an excessive workload. The Claimant accepted in cross examination that he did not openly discuss his political beliefs at work and there was no evidence to suggest or infer that he was perceived to be left wing. The alleged comments made by Mr Donnarumma did not establish a prime face the case of discrimination and there was no evidence of any causal link between his protected characteristics and the comments made.[39]He also submitted that the email that the Claimant sought to rely on as a protected act did not meet the definition of a protected act in section 27 of the Equality Act 2010 in that there was no allegation that the Respondent had contravened the Equality Act. In relation to the unpaid wages the Claimant accepted that he had not returned his laptop. He was paid his correct pay in January and in any event had been overpaid for his annual leave by more than the four days which the Respondent has deducted from his pay.
Conclusions
[40]Direct race or belief discrimination. The Claimant has failed to provide any evidence which would suggest that Ms Walsh or Mr Rahman or anyone else at the Respondent had any perception that “his political beliefs did not align with those of the Conservative and Unionist party”. It is not enough to say that Dr Pankaj was a donor to Mr Sunak’s leadership campaign, or that there are no MPs representing Northern Irish constituencies who are Conservative or Unionist and no Conservative or Unionist elective representatives in the Northern Ireland assembly. The claim for discrimination based on perceived belief fails at that hurdle alone. But, even if it could be said to be that the Respondent perceived that he had, or did not have, any particular belief, the Claimant has failed to show any facts from which the Tribunal could infer that the Respondent acted as alleged because of his race and/or any perception of his political beliefs.[41]There was no evidence before me that between August and December 2023 the Respondent imposed an excessive workload on the Claimant by(i) requiring him to go to meetings that other staff were not required to or by(ii) giving him additional administrative tasks. This allegation is not made out in the facts.[42]The Claimant also suggests that the Respondent made demeaning comments about him. The only evidence before me which related to this allegation was that, while he was away in Northern Ireland, during an online meeting to discuss his property search, Mr Donnarumma asked the Claimant when he was coming back to the United Kingdom and asked him why he was willing to work for the level of remuneration offered by the Respondent when he could be earning more in private practice. Neither comment is particularly unreasonable or even remarkable. When I asked the Claimant why he believed it to be unreasonable to ask him when he was coming back, the Claimant said that asking someone who was in Northern Ireland when they were coming back to the United Kingdom was indicative of discrimination because Northern Ireland was part of the United Kingdom.[43]I do not accept that. While it is true that Northern Ireland is part of the United Kingdom, given the context I find it far more likely, on the balance of probabilities, that the question was asked in an attempt to find out when the Claimant was coming back to London (his contract provided that he would be required to work/attend meetings at the Respondent’s London Campus) and was phrased in such a way either because Mr Donnarumma was not aware that Northern Ireland was part of United Kingdom or from a sloppiness of expression. The question about why he worked for the Respondent when he could “make more money” practising law, does not seem to relate either to the Claimant’s nationality, race or any perception of left-wing beliefs.[44]The Claimant does not suggest in his witness statement that these questions were asked “repeatedly” as set out in the list of issues. There was nothing in the Claimant’s witness statement which related to his complaint that the Respondent repeatedly singled him out for praise “in an attempt to drive a wedge between him and his colleagues”.[45]The Claimant also alleges that he was directly discriminated against because Ms Walsh and Mr Rahman on “a few (no more than five) occasions in January 2024 emailed him to raise “insignificant issues purportedly related to his performance. These are the January emails to which the Claimant was not responding.[46]Those emails/contacts are detailed above. They were not “insignificant issues”. While the Claimant was permitted to work remotely and was trusted to do so, he had not responded to what were evidently urgent requests from the Respondent to get in touch. His Teams message on 14th January shows that he was aware of the issues that the Respondent was facing, but had chosen not to make himself available on Monday 15th to assist. While I consider that the Respondent acted with unreasonable haste in moving to a disciplinary process (see below), in the circumstances the questions arose from the fact that he was not responding to a number of urgent requests at a time when he was required to be at work, and not because he was from Northern Ireland or because of any perception of his political beliefs.[47]The Respondent did not “refuse” to give him a copy of the Grievance Procedure. He already had a copy as it was contained in the handbook. In any event the email he sent was sent after hours on the evening before his disciplinary hearing, and there is no material which was suggest that a failure to respond to that request was connected or related to his race or political beliefs.[48]This case, however, is clearly really about the Claimant’s dismissal. The Respondent acted with unreasonable haste in moving to a disciplinary process and dismissing the Claimant. If the Claimant had had the requisite service for a case of ordinary unfair dismissal, the dismissal would have been unfair as the Respondent did not sufficiently investigate whether the Claimant had in fact been working, and did not allow the Claimant sufficient time to respond and to reflect on whether or not he would attend a disciplinary hearing. The disciplinary hearing was called at extremely short notice, and although the Claimant’s email in response was belligerent, it would have been reasonable for the Respondent to have given the Claimant more time to reflect and a second chance to attend the reconvened hearing.[49]However, the Claimant does not have the relevant service, and the issue is not whether his dismissal was unfair, but whether Claimant has proved facts from which the Tribunal could conclude, in the absence of any other explanation, that the Respondent has contravened the Equality Act.[50]Although the Respondent did move with unreasonable haste to dismiss the Claimant, there were undoubtedly significant failures by the Claimant in the relevant period to respond to phone calls, emails and Teams messages at a time when the Respondent was asking for his urgent assistance.[51]The Claimant says that he was working in the relevant period. He said (but only in cross examination) that he sets his status on Teams to “offline” when working so that students can contact him, and that it was still possible to contact him even when his status was of line. But these are not explanations he chose to share with the Respondent at the time and, apart from referencing one online class, he chose not to respond to requests for help or provide information to the Respondent as to what he had been doing on the relevant period.[52]I am satisfied that the Claimant was dismissed because of his failure to respond to emails, calls and Teams messages, and his failure to give any explanation as to what he had been doing in the relevant period. I do not accept that his dismissal was influenced by his nationality or race. There is no evidence that Ms Walsh or anyone else had any perception of what his political beliefs were.[53]Victimisation. The definition of a protected act is set out above. In his email of 16th January, the Claimant referred to harassment/bullying but there is no reference to any protected characteristic. The Claimant was not making an allegation that the Respondent had contravened the Equality Act whether expressly or impliedly. Bullying and harassment can take place even in the absence of any protected characteristic. There is nothing in the Claimant’s witness statement that suggests that Ms Walsh, who dismissed the Claimant believed that the Claimant might make allegations bring a claim under the Equality Act.[54]In any event, even if the email of 16th January did amount to a protected act the only alleged detriments that occur after that email were the dismissal and the failure to provide the Grievance Procedure. The Claimant had been asked to attend a disciplinary hearing before he sent hose mal of 16th January, so the dismissal process had started, and the Claimant had been warned that a possible outcome of the meeting might be summary dismissal. I do not accept that the decision to dismiss the Claimant was because he had sent the email of 16th January, nor was the failure to provide a grievance procedure for that reason.[55]Wrongful dismissal. Where an employee is contractually entitled to a period of notice, an employer who dismisses an employee without giving him notice will be in breach of contract. An employer is entitled to dismiss an employee without any notice, where there has been repudiatory conduct by the employee justifying summary dismissal. To amount to a repudiatory breach the employee’s behaviour must disclose a deliberate intention to disregard the essential requirements of the contract. The degree of misconduct necessary for the employee’s conduct to amount to a repudiatory breach is a question of fact for the Tribunal to decide. The issue here is whether at the time of dismissal there were in fact grounds for summary dismissal and not whether those grounds were the employer’s reason for the dismissal (Boston Deep Sea Fishing v Ansell 1888 39 Ch D 339.)[56]The Respondent’s concerns related to a period of absence from 10 to 16th January. It is common ground that the Claimant delivered his teaching as required on Sunday 14th January and also responded to an email from Ms Walsh that evening. Beyond that, the Claimant’s witness statement contained no details about what he was doing during that period - though in cross examination he put it to Mr Rahman (somewhat vaguely) that it was his job to develop teaching materials. He was not logging onto Teams, not replying to emails requesting his help, and not answering his phone. Beyond telling the Respondent that he had done a remote teaching class on Sunday 14th January, he did not, when requested by Mr Rahman inform the Respondent of any other activities which he carried out during the relevant period.[57]On the other hand the Respondent permitted its lecturers to work remotely and trusted them to get on with its work, and did not seek to micromanage; although, as Mr Rahman says, in doing so they relied on their lecturers to respond in a timely manner to emails and other contact - which was an indication that they were in fact working.[58]I have concluded that the behaviour of the Claimant was not sufficiently serious to justify a dismissal without notice. He had delivered his class on Sunday and had responded to Ms Walsh about the remarking. Although he had not been helpful, he had previously been trusted to get on with remote working and, given this is the way that the Respondent operated, the Claimant’s behaviour did not cross the line such as to amount to a deliberate intention disregard the essential requirements of the contract.[59]Wages. The Claimant accepted that he had not returned his company laptop, although he now complains that the Respondent has disabled it and it no longer works. The Respondent was entitled to make a deduction for the laptop, but I hope that, if the Claimant now returns the laptop, the £800 will be paid to the Claimant.[60]Although again the Claimant does not deal with the deduction form wages in his witness statement this in his witness statement, the list of issues records that the Respondent accepts that the Claimant was not paid for four days in January because the Respondent believed him to be absent without leave. While I would ordinarily have ordered this to be paid, the Claimant was overpaid in January as the holiday pay due to him had been overstated by 4.5 days. In those circumstances there was no deduction.[61]In relation to the ACAS code, there was a failure to abide by the Code (insufficient notice of the hearing failure to investigate before calling the meeting), I do not consider it just and equitable to increase the award as the Claimant himself failed to attend the disciplinary meeting or to provide any sensible explanation of his activities during the relevant period.
Conclusions
[1]By email sent on 2 January 2025 the Claimant asked for a reconsideration of the Tribunal Judgment dismissing his claims of direct discrimination and victimisation.[2]Under Rule 68 of the Employment Tribunal Rules of Procedure 2024 a Tribunal “may… reconsider any judgment where it is necessary in the interests of justice to do so”. Upon reconsideration the Judgment may be confirmed, varied or revoked.[3]Rule 70 provides that the Tribunal must consider a (timeous) application to reconsider, and if the Tribunal considers there is no reasonable prospect of the decision being varied or revoked, the application shall be refused. Otherwise it is to be decided, with or without a hearing, by the Tribunal that heard it.[4]A Judgment will only be reconsidered where it is necessary in the interests of justice to do so. This does not mean that in any case where a litigant is not successful he is entitled to a reconsideration. The Tribunal must seek to give effect to the overriding objective to deal with cases “fairly and justly”. Case law establishes that, while the interests of justice test allows for a broad discretion, it must be exercised judicially, which means having regard not only to the interests of the party seeking the reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation. Case No: 2217777/2024[5]Under the 2004 rules prescribed grounds for a reconsideration were set out, plus a generic “interests of justice” provision, which was to be construed as being of the same type as the other grounds. These were that a party did not receive notice of the hearing, or the decision was made in the absence of a party, or that new evidence had become available since the hearing provided that its existence could not have been reasonably known of or foreseen at the time. Those grounds remain highly relevant to the issue of when it is in the interests of justice to reconsider a Judgment. A reconsideration application is not a means by which a disappointed litigant can reopen issues that were already before the Tribunal in order to have another bite at the cherry.[6]The Claimant says that it is necessary to reconsider the Judgment in the interests of justice because at paragraph 43 a finding of fact was made for which there was no evidence. It was the Claimant’s case that (while he was away in Northern Ireland because of problems with his London accommodation) Mr Donnarumma asked the Claimant when he was coming back to the United Kingdom - and that his question amounted to direct discrimination and victimisation. He suggests that because Mr Donnarumma did not give evidence in the case the Tribunal was unable to make a finding that his question did not amount to direct discrimination or victimisation.[7]As to victimisation that question was said to have been asked before the pleaded protected act – so the Claimant had put the cart before the horse, As to direct discrimination the issue for the Tribunal was whether that query was demeaning and amounted to less favourable treatment of the Claimant because of his perceived political beliefs or because of his nationality. The finding was that it did not. In the absence of Mr Donnarumma the Tribunal was entitled to have regard to the context in which the question was asked and it did so,[8]The application discloses no proper grounds for a reconsideration and is refused. _______