A Fullerton-PearceClaimantS.L.E. LtdRespondentDate 15 February 2024
JUDGMENT
[1]By a case management order of 24 October 2023, the Tribunal gave the Claimant an opportunity to make representations in writing, or to request a hearing, as to why his claim should not be struck out because it has not been actively pursued.[2]The Claimant has not made any representations or requested a hearing.[3]The claim is struck out. Judge M Aspinall Thursday, 15th February 2024 2303466-2021 Mr Aaron Fullerton-Pearce -v- S.L.E. Limited: 15-02-2024 Judgment Page 1 of 1 Reference number 2303466-2021 EMPLOYMENT TRIBUNALS London South Employment Tribunal Claimant: Aaron Fullerton-Pearce Respondent: S.L.E. Limited Application for reconsideration[1]This matter comes before me, Judge M Aspinall, on an application by the Claimant for reconsideration of the judgment I handed down on 15 February 2024.[2]The Claimant is Mr Aaron Fullerton-Pearce, an individual who was employed by the Respondent, S.L.E. Limited. The Respondent is a company that operates in the construction sector.[3]Mr Fullerton-Pearce began working for S.L.E. Limited in March 2016 as a construction site manager. He remained in this role until his employment was terminated in January 2021. The Claimant alleges that throughout his employment he was subjected to unlawful treatment including unfair dismissal and race discrimination.[4]In August 2021, Mr Fullerton-Pearce lodged a claim with the Employment Tribunal against his former employer S.L.E. Limited. On the ET1 claim form, he ticked boxes indicating he was bringing claims of unfair dismissal and race discrimination. However, no further details or particulars were included about the factual basis for these alleged claims.[5]Over the course of the proceedings, the Respondent and the Tribunal sought further information from the Claimant about the details of his complaints against the employer. Orders were made requiring the Claimant to provide particulars, but no details were forthcoming. This led to the race discrimination claim being struck out in May 2022.[6]The unfair dismissal claim limped on, but despite further orders no particulars were provided. This culminated in my judgment dated 15 February 2024 striking out the remaining unfair dismissal claim due to lack of prosecution by the Claimant. It is this judgment that the Claimant now seeks to challenge through his application for reconsideration. Application for reconsideration[7]The Claimant has applied for reconsideration of my judgment of 15 February 2024. The application was made by Mr Fullerton-Pearce himself in an email dated 17 March 2024, which was within 14 days of the written judgment being sent to the parties on 4 March 2024. Therefore, the application has been made in time in accordance with Rule 71. 2303466-2021 Mr Aaron Fullerton-Pearce -v- S.L.E. Limited: 30-03-2024 Reconsideration decision Page 1 of 5[8]In his application, Mr Fullerton-Pearce asks that the Tribunal revisit its decision to strike out his claims, to allow him a further opportunity to have his case against S.L.E. Limited heard.[9]The Claimant argues that his former representative, Mr Sarpong, failed to provide the Tribunal with relevant documents and evidence supporting his claims. He asserts Mr Sarpong did not act in his best interests.[10]Mr Fullerton-Pearce states his new representative, Mr Patel, has been trying unsuccessfully to obtain his case files from both Mr Sarpong and the Tribunal Office. The Claimant contends he was at a disadvantage without proper representation.[11]In support of reconsideration, Mr Fullerton-Pearce relies upon principles of justice and fairness. He wishes to have a chance to fully present his case against his former employer which he maintains includes valid claims of unfair dismissal and race discrimination. Legislation[12]I have considered the provisions in the Employment Tribunals Rules of Procedure 2013 (as amended) which govern applications for reconsideration. The starting point is Rule 70 which states: "A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again."[13]Rule 71 sets out procedural requirements for such applications and states: "Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary."[14]Under Rule 72, the Tribunal is obliged to consider any application for reconsideration properly made. Paragraph (1) provides that: "The Tribunal shall consider any application made under rule 71. If the Tribunal considers that there is no reasonable prospect of the original decision being varied or revoked...the application shall be refused and the Tribunal shall inform the parties of the refusal."[15]Where an application is not refused at the initial stage, paragraph (2) states the Tribunal must reconsider the original decision at a hearing unless it is deemed unnecessary in the interests of justice. Further written representations may also be allowed.[16]These Rules make clear that reconsideration is an exceptional remedy, only to be permitted where strictly necessary to avoid injustice. The application must meet tight procedural requirements and must demonstrate strong grounds with a reasonable prospect of the original decision being overturned. Case law (precedent)[17]In considering this application for reconsideration, I have borne in mind the authoritative guidance of HHJ Shanks in Ebury Partners UK Ltd v Acton Davis [2023] EAT 40. This case provides important direction on the proper exercise of an Employment Judge's power to reconsider a previous judgment.[18]In Ebury Partners, HHJ Shanks held that there is a strong public interest in the finality of litigation. Allowing a party to have a "second bite at the cherry" through reconsideration is unusual and should be exercised cautiously. 2303466-2021 Mr Aaron Fullerton-Pearce -v- S.L.E. Limited: 30-03-2024 Reconsideration decision Page 2 of 5[19]HHJ Shanks stated that reconsideration may be warranted where there was some procedural defect or irregularity that denied a party fair opportunity to present its case fully the first time. However, he warned that reconsideration should generally not be invoked just to correct a supposed error of law by the judge. Alleged legal errors are better addressed through appeal.[20]Critically, HHJ Shanks found the Employment Judge in that case erred in law by reconsidering the judgment. The Judge failed to properly consider whether reconsideration was truly in the "interests of justice" as required by the Rules. Instead, he went on an inappropriate "frolic of his own" by fully re-deciding the entire case on a new basis.[21]Moreover, HHJ Shanks emphasised that any reconsideration must focus tightly on the specific issues and decisions the applicant seeks to revisit. Reconsideration should not reopen the whole case or permit arguments on unpleaded points.[22]I have carefully borne in mind these important principles from Ebury Partners regarding the high threshold for reconsideration. I am mindful of the need to cautiously analyse whether reconsideration of my previous judgment is warranted based on the particular application made in this case and the interests of justice. Documentation considered[23]Based on the documents provided, the key evidence I have considered in relation to the application for reconsideration is as follows:[24]The original ET1 claim form submitted by the Claimant on 19 August 2021 sets out brief details of his claims against the Respondent for unfair dismissal and race discrimination. However, it contains no particulars or supporting facts for these alleged claims.[25]The case management order dated 24 October 2023 made by