Ms X Horne v Trinity College London: 2303330/2020 and 2300823/2020
EMPLOYMENT TRIBUNALS
Case No 2303330/2020, 2300823/2020
Between
Ms X HorneClaimantTrinity College LondonRespondent
Before
Employment Judge T R SmithIn person for claimantDate 19 November 2024
JUDGMENT
[1]The Claimant was not an employee of the Respondent for the purposes of section 230(1) of the Employment Rights Act 1996 whilst working as either a panel member or lead senior examiner and therefore her complaints of unfair dismissal, automatic unfair dismissal and constructive dismissal are dismissed.[2]The claimant was a worker for the purposes of section 230(3)(b) of the Employment Rights Act 1996, regulation 2(1) of the Working Time Regulations 1998 and section 83(2) of the Equality Act 2010 in her role as panel member but not in her role as lead senior examiner. Case Number: 2300823/2020 and 2303330/2020 EMPLOYMENT TRIBUNALS Claimant: Ms X Horne Respondent: Trinity College London Heard at: London South On: 6 December 2022 Before: Employment Judge Siddall RULE 37 JUDGMENT The claim for sex discrimination is dismissed on the grounds that the tribunal has no jurisdiction to consider it. The remaining claims will proceed to a hearing.
REASONS
[1]The tribunal had before it an agreed bundle totalling 447 pages. It also had a supplemental bundle totalling 63 pages.[2]A reference in this judgement to a document is a reference to the main bundle (“B”), unless otherwise indicated (“SB”).[3]The parties were reminded that if they wanted the tribunal to look at a specific document they had to take the tribunal to it.[4]A great deal of time was wasted reviewing the agreed bundle which contained significant duplication of documents, sometimes on ten to twelve occasions. In addition a considerable proportion of the documentation in both the main and supplemental bundle appeared to be irrelevant to the issue the tribunal had to determine.[5]It was also regrettable that the tribunal was not forewarned of the size of the bundles so the time estimate could have been adjusted. Significant prereading had to be undertaken over a weekend.[6]The claimant provided the tribunal with written representations, in addition to amplifying upon those representations orally.[7]The respondent relied on oral representations.[8]The fact each and every representation may not have been recorded in this judgement does not mean that the tribunal did not give it consideration. The issue[9]The purpose of the hearing today was for the tribunal to determine the claimant’s application for a reconsideration of part of the judgement it gave on 07 December 2021, following a two day hearing.[10]The finding challenged was that the tribunal held the claimant was neither an employee nor a worker in her role as lead senior examiner.[11]The respondent expressly conceded:- It took no point as to the application being out of time. It took no point as to whether a second application for a reconsideration was permissible.[12]The claimant’s original written application for reconsideration was at substantial variance to submissions made to the tribunal. The tribunal will address that matter, later in its judgement.
Background
[13]The claimant issued two claims against the respondent, the first on 28 February 2020 (the first claim) and the second on 10 August 2020 (the second claim).[14]Put neutrally the claimant undertook work for the respondent in two separate guises, the first as a panel member and the second as a lead senior examiner.[15]The claimant raised the following complaints in the first claim: – Ordinary and automatic unfair dismissal ( the latter in breach of section 103A ERA 1996). Detrimental treatment in breach of section 47B ERA 1996. None payment of holiday pay[16]The claimant raised the following complaints in the second claim: – Unfair dismissal Discrimination on the grounds of sex None payment of holiday pay.[17]It had been directed by the tribunal that the first and second claims would be heard together.[18]The respondent took as a preliminary jurisdictional point that the claimant was neither an employee nor a worker.[19]The tribunal therefore convened a preliminary hearing to determine the claimant’s status.[20]Following a two-day hearing on 06 and 07 December 2021 the tribunal found the claimant was not an employee either in her role as a panel member or lead senior examiner.[21]The tribunal found the claimant in her role of panel member was a worker for the purposes of section 230 (3) (b) of the Employment Rights Act 1996, regulation 2(1) of the Working Time Regulations 1998 and section 83 (2) of the Equality Act 2010 but not in her role as a lead senior examiner.[22]In the circumstances the claimant’s complaints of unfair dismissal automatic, unfair dismissal and constructive dismissal were dismissed. No other complaints were dismissed.[23]Although the tribunal gave an oral judgement on 07 December 2021 it did so on the basis of notes which were read to the parties, having been prepared following submissions The notes dealt in detail with tribunal’s findings of fact although only contained an aide memoir of what it then announced to the parties in terms of the reasoning for its decision, and the law upon which it relied. In other words the tribunals notes were verbatim with its oral findings of fact, but not with its oral reasoning due to a shortage of preparation time and a need to conclude the hearing.[24]As an aside, relevant to what follows, there was apparently an application to amend one or more of the claim forms lodged at the tribunal before the above hearing. The tribunal indicated at the time that it was working electronically and did not have a copy of the application before it, and in any event there was insufficient time to deal with the matter. The tribunal determined that the amendment application would be dealt with at a separate hearing, and proceeded to determine status[25]Returning to the oral judgement given to the parties, in terms of the claimant’s contractual position the tribunal said: – “The claimant applied for a role advertised by the respondent as “lead senior examiner drama”. The job description issued to the applicants stated it was for a “fixed term 12 month staff contract”…. On 05 February 2019 the claimant indicated she wished to accept the role… What is clear from the claimant’s email was that there had been no discussion as regards the daily rate or the starting date as the claimant queried these matters in her email to the respondent. The tribunal concluded therefore that if there was any discussion of the status of the role at interview, it was in very fleeting terms. The claimant sought by email of 06 February 2019 to see whether the daily rate could be increased…. The respondent replied on 14 February and indicated the daily rate was fixed at £250 …The respondent’s offer was on a take it or leave it basis. The claimant enquired as to whether there was a probationary period and was told on 18 February 2019 “ With regards to your question about a probation period. There isn’t a probation period with this role, with it being a freelance contract”. …. It is credible that the reason for the change was that whilst Professor Rofe had described the role of what he was looking for, he did not draft the job description and either before or just after the interview made it clear to the person dealing with the paperwork that the job was that of a contractor and not an employee. The claimant was issued with a written agreement (149 to 154) dated 07 March 2019 which the claimant signed. …. It is clear on the face of the agreement that the respondent now regarded the role not as one of employer/employee but that of a contractor.”[26]The tribunal then orally explained why it did not accept the claimant’s contention that she was unaware of the change in status.[27]The document the claimant had signed clearly described the claimant as being regarded as a contractor and that the agreement did not create an employment relationship.[28]The claimant made an out of time application for written reasons for the tribunal’s judgement which were refused on 27 January 2022 (B86)[29]In the interim, on 24 January 2022, the claimant had made an application for a reconsideration (B83/85). This was the first reconsideration application.[30]There were two distinct limbs to the reconsideration application. The first that there were occasional problems with the CVP system which the claimant said led her to feel stressed and may have made it difficult for the tribunal to sustain and maintain focus.[31]The second ground sought to place different weight on matters of evidence, with particular regard to the contractual situation[32]It is appropriate to record verbatim what the claimant said as regards the contractual documentation issued to her in her first reconsideration application :– “”The Respondent stated that the Lead Senior Examiner role was that of an external consultant, that I was to undertake a standardisation role as an external consultant, and that my contract was entirely distinct from that of the panel examiner role. No evidence was produced by the Respondent to show that the Lead Senior Examiner role had originally been a consultancy role. The Judge accepted the Respondent’s argument that the staff responsible for the contracting of the role had since left the organisation. This is not true. Fiona Butcher (who works for the Respondent in the Legal Department) had been responsible for producing the contract. The emails within the bundle confirm that the Legal Department had apparently had issues with my email address and had issued the original document. Fiona Butcher was present at the first day of the online hearing, December 6th. In the interests of justice, the statement should be supported with evidence. I applied for the Lead Senior Examiner role as part time staff role. I was interviewed for a staff role as indicated in the evidence provided within the bundle”.[33]Although the application for a reconsideration was out of time the tribunal exercised its discretion to consider the application on the merits and did so, on the papers. Having done so it rejected the application for the reasons as set out in its letter dated 01 February 2022. (B89/90).[34]The tribunal said in respect of the contractual argument: – The tribunal accepted that initially the lead senior examiner role was advertised as a staff role but for the oral reasons it gave it accepted that from initial consideration but before appointment, it was determined that an employee was not required for the post. If it was the claimant’s case that the respondent was wrong to say that the staff involved for contracting of the role had left the organisation that should have been fairly put to the respondent to answer.”[35]The claimant sought to appeal the judgement of 07 December 2021 but the appeal was rejected by the EAT on 10 May 2022 as having not been properly instituted.[36]At this juncture it is proper to record the respondent did not appeal the tribunal’s finding that the claimant, as a panel member, was a worker.[37]On 06 December 2022 Employment Judge Siddall refused part of the claimant’s application to amend her claims. She refused the amendment which related to the claimant’s role as lead senior examiner in respect of the complaint of direct sex discrimination on the basis that this tribunal had found the claimant was not a worker for the purpose of the Equality Act 2010.[38]It is not clear exactly what occurred at the EAT other than the tribunal noted a sealed order dated 21 April 2024 where the claimant’s application for a review of an order of the EAT with a seal date of 03 April 2024 was dismissed. It is probable that the order related to the refusal of EAT to entertain the claimant’s appeal that was not properly instituted within time.[39]Relevant to these proceedings is a comment His Honour Judge Auerbach made in the summary reasons given by for the rejection[40]He said: – The appellant relies on various documents that were provided to her, in response to SAR’s, by the respondent on 11 April 2024… The appellant argues that this material casts light on the issue before the employment tribunal relating to whether she was, in her role of senior leader examiner, a worker, an employee or neither… I accept that this material was not available to the appellant at the time of the hearing before me.. If the appellant considers that the material that has been disclosed to her is new evidence, which ought to provide the basis for the employment tribunal to review its own decision, the proper course would be for her to apply to the employment tribunal out of time for a reconsideration”.[41]On 06 May 2024 the claimant applied for the reconsideration of both this tribunal’s judgement and the order of Employment Judge Siddall. (The tribunal is aware that reconsideration relates to judgements but nothing turns on this point).This was the second reconsideration application. 42.The tribunal considered it could not say, on reviewing the papers, given the assertion there was a large volume of new evidence, that the second reconsideration application had no reasonable prospects. 43.The tribunal invited a response from the respondent which was subsequently supplied. 44.The tribunal determined that the application should be determined by means of a hearing. The tribunal did not set out a provisional view on the strength or otherwise of the claimant’s application. 45.At this hearing the tribunal determined, with the agreement of the parties, that it was appropriate to reconsider this tribunal’s judgement first, as it had the potential to materially impact upon the order of Employment Judge Siddall. The basis of the second reconsideration application. 46.The grounds for the second reconsideration were set out in the claimant’s email of 06 May 2024 (B105/106) namely that new evidence had come to light that showed:- “• * there was considerable confusion in the Operations Team who were tasked with constructing the Lead Examiner Contract, to the extent that a contract was not issued to me until March 1 2019…• * the emails show that the contract was deemed to be an examiner role by Janis Lines - not an external role as stated in the Respondent's Ground of Resistance, Witness Statements and in given evidence. It was Janis Lines who stated that the Lead Senior Examiner contract should therefore be a consultant post not Professor Rofe as stated in the Witness Statement. therefore the role should have at least benefits (sic) of a worker status.• * a Contract of Employment was anticipated by the Panel Manager Katy Vine who had attended my interview. She drafted an email congratulating me on my appointment, stating a Contract of Employment would follow. I never received the email and had no written contact regarding the appointment which does not fit with HR best practice.• * the HR Department were not involved in the contracting process which does not sit comfortably with the Respondent's legal duty to follow a responsible and fair recruitment process 105• * the role was changed from staff to employee AFTER my interview and without any consultation or negotiation.”• * the role was reduced from the advertised 12 months to ten months on the orders of Janis Lines after Feb 20th 2019 when there was still confusion about the status of the role• * Janis Lines is shown to have taken responsibility for the drafting of examiner contracts when her role was Director of Customer Services. Her involvement in the process is puzzling and unorthodox.” 47.Thus in the claimant’s written application she focused upon the contractual situation. 48.However before the tribunal the claimant relied on four points to justify a reconsideration : – One, her application to amend her claim forms should have been dealt with on 06 and 07 December 2021. Two, new evidence had come to light Three, that she was entitled to compensation for detrimental treatment regardless of her employment status Four, she had a right to bring a sex discrimination claim against the respondent regardless of her employment status. 49.In terms of the third and fourth points the claimant relied upon Gilham -vMinistry of Justice 2019 UKSC 44 and the recent case of MacLennan -v-British Psychological Society 2024 together with a number of European cases as set out in her written submission. The claimant contended that even if she wasn’t an employee or a worker she could rely upon those judgements to support points three and four. 50.The claimant also made reference to the fact she was paid less than a male comparator. That potentially was an equal pay claim and no such claim has ever been pleaded. For that reason the tribunal did not consider it a valid ground. The legal principles the tribunal applied. 51.An application for a reconsideration must be presented in writing within 14 days of the date on which the written record of the original decision was sent to the parties, see rule 71 of the Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013 ( “the Rules”) 52.On a reconsideration, the original decision may be confirmed, varied or revoked. 53.Rule 72 sets out the procedure to be adopted by a tribunal on a reconsideration 54.Any application for reconsideration must be approached by the tribunal in accordance with the mandatory, process described in rule 72, see TH White & Sons Limited v Ms K White UKEAT/0022/21. 55.The reconsideration procedure is not some form of quasi-appeal procedure on a point of law. If the reconsideration is on a point of law that should be addressed by means of an appeal,see Trimble v Supertravel Ltd [1982] IRLR 451, [1982] ICR 440. 56.In a case where a party relies upon new evidence the appropriate test to apply is that set out in the decision of Ladd -v- Marshall 1954 1 WLR1489 57.The Ladd v Marshall test has three limbs. It must be shown:(a) that the evidence could not have been obtained with reasonable diligence for use at the original hearing;(b) that it was relevant and would probably have had an important influence on the hearing; and(c) that it was apparently credible. 58.In determining whether or not vary or revoke the original judgement, case law emphasises that the interests of justice must be considered not only from the point of view of the party seeking the reconsideration, but also from the point of view of the party resisting it. When considering any application the tribunal must give effect to the overriding objective found in Rule 2. 59.In addition when looking at the public interest significant weight must be given to as far as possible, to achieving finality in litigation, see Newcastle Upon Tyne City Council v Marsden UKEAT/0393/09, [2010] ICR 743. Discussion and conclusions Time 60.The first matter to consider was the fact the claimant’s second application was out of time. 61.It was. 62.However the wording of rules 70 and 71 are not an absolute bar to a reconsideration being considered out of time see Banerjee – v – Royal Bank of Canada UKAEAT/0189/19 and Gosalakkai -v- University hospitals of Leicester NHS trust UKEAT/02223/18 which both emphasised the wide discretion a tribunal had to extend time. 63.The tribunal decided to extend time for the following reasons: – Firstly the respondent did not object. Secondly it was common ground that further information had been disclosed to the claimant following the hearing, now the subject to the reconsideration, which was not available to her at the time. Thirdly the claimant was not aware she could ask for a further reconsideration until mentioned to her by the EAT on 21 April 2024 and thereafter she acted reasonably promptly. More than one application? 64.The second matter the tribunal raised with the parties was whether the claimant was entitled to bring a further application 65.There was nothing in the Rules to prevent the claimant making a second application for a reconsideration but where the first application has been properly refused it was only likely to succeed if there were special reasons, see Raybright TV Services Ltd -v- Smith 1973 ICR 640 (a decision on a previous version of the Rules). Had the second reconsideration been limited to the initial application which repeated the contractual question and in which no special reasons were made out, or had the respondent objected to the reasons now relied upon by the claimant went beyond the initial reasons, the tribunal may well have refused the application. However, no doubt, to ensure the reconsideration application was fully ventilated the respondent did not. 66.The tribunal therefore favoured the claimant on this point for the following reasons: – Firstly the respondent had never raised the point Secondly when the tribunal raised the point the respondent expressly conceded it. Thirdly before the tribunal the grounds for the reconsideration went beyond the grounds set out in the first application and that was not subject to objection. The grounds Ground One 67.The tribunal rejected the claimant’s contention that the tribunal should reconsider its judgement on the basis that it failed to deal with her amendment application on 06/ 07 December 2021 for the following reasons: – Firstly the tribunal could not do so because it did not physically have a copy of the application before it, and a written copy is a prerequisite to dealing with an amendment application. Secondly it did not have sufficient time. Thirdly and most importantly it would have had no impact upon the issue of the claimant’s status. The amendment related to protected disclosures, detriments and direct sex discrimination. All were dependent on the claimant’s status. Even if the tribunal had dealt with amendment first, and granted it in favour of the claimant, it would have made no difference to the approach it would have had to take to her status. Grounds three and four 68.The third and fourth grounds can be conveniently dealt with together. The claimant sought to argue that she was entitled to pursue a detriment and sex discrimination claim regardless of status. 69.The tribunal rejected the reconsideration application on these two grounds for the following reasons: – Firstly it was not satisfied the claimants assertion was an accurate statement of the law Secondly these were legal points that did not properly form the subject matter of a reconsideration. They should have been dealt with as an appeal, see Trimble ( supra) Thirdly they were never raised with the tribunal and the decision in Gilham was handed down on 16 October 2019, before the judgement subject to the reconsideration. It could have been raised at the time. Whilst the tribunal was referred to MacLennan, that was a case of a charitable trustee who asserted he made a protected disclosure. The EAT remitted the case back to the employment tribunal, which had held that the claimant was not a worker, as it had failed to give weight to certain factors. The EAT did not decide that the claimant in that case was a worker. Whilst the tribunal did accept that there was a thread visible in recent years of the appeal courts taking a wider interpretation of what was a worker in protected disclosure cases, as this point was never argued it was not suitable for a reconsideration. A reconsideration was not to give a party “ two bites at the cherry” and to permit the claimant to now advance these points was a classic case of so doing. Fourthly while some of the case law the claimant referred to postdated the tribunal’s judgement, the tribunal had to deal with the law as it stood when it gave judgement, not how the law may now be. Ground two. 70.The final ground was point two namely the claimant’s assertion that there was new evidence. It is proper to record the respondent disputed that some of the evidence was new but conceded that limbs one and three of Ladd were satisfied in respect of genuinely new evidence. 71.The claimant predicated part of her case that the respondent recruited to the post of lead senior examiner on the basis it was to be a single standardisation exercise yet what occurred in practice showed it was significantly different. 72.The tribunal had not decided the status issue on that basis. It had accepted what Professor Rofe said about the new role set out in paragraphs 40 and 41 of his statement (B138). The role was to provide an overview to the respondent of the work done in its drama division, review the work of senior examiners (who were contractors) and to deliver some training. Professor Rofe considered a self employed role was appropriate to achieve a level of independence and objective view of the processes. 73.The tribunal now turned to individual documentation. 74.The first tranche of documentation was relevant to the formation of the agreement between the claimant and respondent. All were new documents. 75.An internal email dated 02 February 2019 from Ms Vine, addressed to the interview panel, contained a draft for approval to send to the claimant and contained the words “we will be in touch shortly to provide you with a contract of employment “ (B108). To put this in context interviews for the role of lead senior examiner had been conducted on Friday 01 February. 76.This e-mail was never sent in the draft terms as explained in the next relevant email. 77.Ms Lines, who sat on the interview panel with Professor Rofe, responded to Ms Vine on 02 February 2019 (copying in Professor Rofe) that “re the offer, as this is an examiner based role the contract should be as a freelancer. I will pick this up with you on Monday…”(B108) 78.Professor Rofe in an email to Ms Vine on 03 February 2019 (B107) stated “looks good though yes, please follow Janis’ [ Ms Lines] suggestion re freelance basis” . 79.The claimant made reference to the words from Professor Rofe in the same email “I know we said we’d code differently for her different work, but I don’t currently carry a budget line for [claimant]” 80.In the tribunal’s view this did not assist the claimant but rather benefited the respondent. It showed that financially the claimant’s role as a contractor and a worker were treated differently for accountancy purposes. 81.The tribunal did not attach any relevance to a document placed before it at B154/155 which appeared to show how the respondent had drawn up a budget for the drama examination standardisation. As far as it referred to the claimant it built in an amount for 10 days consultancy work from the claimant. At its highest all this document might show was the claimant was undertaking some training of more junior contractors. However the tribunal had accepted the evidence of Professor Rofe that the role of lead senior examiner included an element of training. 82.On 04 February 2019 Ms Lines informed Ms Vine, that the claimant had accepted the “freelance role” of lead senior examiner – drama” and a contract needed to be issued as soon as possible (B117). The subject line of the email was “consultancy contract please” 83.On 14 February 2019 Ms Lines emailed Ms Vine as regards a draft agreement ( presumably supplied to her) and advised the reference to probationary period should be deleted because it was a freelance contract so there was none (B160) 84.An internal email between Ms Vine and a Ms Kauser (who appeared to work for the respondent as a paralegal) dated 18 February 2019 (B114) stated “I think that I may need to check with Janis as I believed this was a consultancy contract – but it says staff contract. If when you have completed a version of the contract, would you kindly mind sending it through please so I can share with Janis/Mike [ Professor Rofe] for comment and check about the wording of that on the top of the job description 85.Ms Lines emailed Ms Vine on 19 February 2019 (B160) having looked at a draft that she been provided and instructed her to remove the words “staff contract”. 86.From the documentation it appears the substantial drafting of the agreement between the claimant and the respondent fell upon Ms Kauser and a Mr Peroy the respondent’s in-house senior legal adviser. 87.It was noted in an internal email dated 07 March 2019 that the claimant had signed the “freelance” contract (B173). That was the document which the tribunal examined at the hearing on 06/07 December 2021. 88.The tribunal accepted that the claimant would not have seen the above internal documentation. It was new. 89.However none of the documentation in the tribunal’s judgement would have had an important bearing on the tribunal’s determination. The tribunal found in its original judgement that initially the post was advertised as a staff contract but by the time the claimant came to sign the documentation she was described as a contractor. The new documentation merely helped to explain the internal dynamics as to how that decision came about. It demonstrated there was confusion as to status, a fact the tribunal was well aware of when it gave its oral reasons ( see paragraphs 25 and 34 above) 90.The second tranche focused on the termination of the respondent. 91.The relevant document relied upon was SB 26/28. 92.The first point to note was this was a draft of a document that was available to the tribunal at the status hearing. They claimant noted in the draft that an option appeared querying whether there was a possibility of some form of re-engagement of the claimant in the future. The draft stated “… Trinity would like to offer you the opportunity to reapply for the lead senior examiner contract in six months, assuming that you demonstrate in the intervening period and return to your previous high quality of work as a panel member”. 93.The mere fact that the respondent was only considering the termination of the claimant from one role pointed to the claimant’s status with the respondent being different in relation to both posts. If the tribunal had seen the draft, at its highest it might have favoured the respondent rather than the claimant. The draft would not have had an important bearing on its final determination. 94.A third tranche concentrated on the claimant’s status compared with that of a Mr Peter Wild (B 254). It appeared an internal email were generated when the claimant was asking about her freelance fee for the lead senior examiner role. The position of Mr Wilde was dealt with in the statement of Professor Rofe ( paragraph 65) so that information was before the tribunal and it was aware that he had a different job title and status. The tribunal had accepted Professor Rofe’s explanation for the difference. Thus this email, which was new, would not have had an important bearing on the tribunal’s final determination. 95.The fourth tranche related to the specification for the role and the role itself. This was not a new document and was before the tribunal when it reached its judgement on status. Whilst the specification made reference to the claimant being part of a team it was never disputed that the respondent retained a cohort of contractors, one of whom was the claimant. Picking one word out of a quite lengthy document to seek to show integration was dangerous especially as the tribunal knew the respondent retained a large cohort of contractors. 96.In an email exchange between Ms Lines and Ms Mc Elheron dated 19 March 2019 (B234) a question was raised as to whether the claimant would be managing a Ms Findley. The answer was in the affirmative. This was a new document although the respondent contended this never actually happened the tribunal was not hearing evidence and looked at matters in the most favourable light for the claimant. It was however satisfied that Ms Finlay was also a contractor. It did not consider that if the claimant, a more senior contractor was managing a more junior contractor that would have had an important bearing on the tribunal’s judgement on status. 97.The fifth tranche centred on the respondent’s desire that the claimant continued with her examining work whilst undertaking her contracting work because it considered it would give her a good knowledge of what was happening in the field of examining. An example appears in an internal email dated 06 February 2019 (B249) which was prepared following a direct request from the claimant about continuing to examine. The claimant was a worker as an examiner. She was free to examine or not to examine. All the respondent was doing was setting out a response to the question. As it transpired the respondent then changed its view in a draft as is evident from an email of 25 March 2019 (B249)) but the draft was never sent. The tribunal did not consider this information would have had an important bearing on the tribunal’s judgement on status. 98.Finally the claimant referred to a document in the supplemental bundle at pages SB34 and 37. This was an email enclosing a draft document, the finalised version of which that was before the tribunal at the preliminary hearing. The document was an internal discussion as to complaints made. 99.This was not a substantially new document. It would not have had important bearing on the tribunal’s judgement on status. The tribunal did not see it assisted the claimant 100.For completeness the tribunal should explain that in reaching its judgement it applied the legal principles already outlined and looked at all the information both individually and then holistically. 101.It considered finality in the litigation was an important and weighty factor. This was a case that had been ongoing now for over four years. If the judgement was revoked it was likely to be at least a year and possibly two years before the matter came to trial, having regard to the waiting lists at Croydon. Delay would impact upon the quality of evidence. 102.The tribunal noted that Professor Rofe had left the respondent’s employment as had Ms Lines. The former remained contactable but the latter had not responded to contact made to her on a number of occasions by the respondent. Of course that would not prevent the respondent applying for a witness order, as undesirable as that might be for the respondent’s own witness. In addition the claimant still had some extant claims so the respondent would have the same problem with witness availability. The risk of prejudice, other than that of memories fading as not as great as suggested by Ms Jennings. 103.Finally the new evidence put before the tribunal was not sufficient to begin to persuade it that it would have had a material impact on the tribunal’s judgement on status. For all the above reasons the application is rejected. 104.The parties should now contact the Croydon employment tribunal to arrange a case management hearing to determine the outstanding issues.