Miss J Ayeni-Stevens v White Cube Art Ltd: 2304105/2023

EMPLOYMENT TRIBUNALS

Case No 2304105/2023

Between

Miss J. Ayeni-StevensClaimant

White Cube Art LimitedRespondent

Before

Employment Judge G. King

Date 7 June 2024

JUDGMENT

ON APPLICATION FOR RECONSIDERATION The Judgment of the Tribunal is that the Claimant’s application for reconsideration is refused because there is no reasonable prospect of the decision being varied or revoked.

REASONS

[1]The Claimant has applied for a reconsideration of the Judgment dated 7 June 2024 which was sent to the parties on 26 June 2024 (“the Judgment”). The grounds are set out in her letter which was attached to her email dated 1 July 2024.

[2]This reconsideration has been on the papers alone as the Tribunal did not consider that a hearing is necessary.

[3]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit.

[4]Under Rule 5 the Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in the Rules or in any decision, whether or not (in the case of an extension) it has expired.

[5]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.

[6]The ground relied upon by the Claimant is that new evidence which she has attached to her email of 1 July 2024. The Claimant has also attached:a. Personal Statement

b. Witness Support Statement from Helen Foster (Work & Wellbeing Advisor) at Film + TV Charity

c. Discharge Letter from Lambeth Talking Therapies – South London & Maudsley NHS Trust

d. Witness Support Statement from Dorcas Ayeni-Stevens (sister)

e. ADHD Diagnosis – Psychiatry UK

[7]The Claimant’s letter, entitled “Request for Reconsideration of Employment Tribunal Claim Outside Time Limit”, stated that “I believe it is in the interests of justice for this claim to be heard, despite the delay in submission, based on the provisions set out in Section 123 of the Equality Act 2010”. The Claimant refers only to the ‘just and equitable’ provision.

[8]On this basis, she therefore does not seek reconsideration of the Tribunal’s Judgment in relation to her claim in relation to other payments (notice pay and bonus) which was dismissed for lack of jurisdiction as it was presented to the Tribunal outside the time limit in s.23 Employment Rights Act 1996.

[9]This reconsideration is therefore only in respect of the disability claim.

[10]The Claimant gives three reasons why the claim should be reconsidered. Firstly, she outlines the “nature and seriousness of the allegations I am making”. The second ground is that she says the delay was not of her making, and there were “extenuating circumstances” that prevented her from meeting the original deadline. Her final ground is that she does not believe that the delay would prejudice the Respondent.

The Law

[11]Rule 70 of the Rules provides a single ground for reconsideration, being the interests of justice. This replaced the previous test, which gave five grounds for reconsideration; one of these was that new evidence had become available since the conclusion of the Tribunal hearing to which the decision related, the existence of which could not have been reasonably known of or foreseen at that time. However, it is clear that, following Outasight VB Ltd v Brown [2015] ICR D11 EAT that the interests of justice test can be viewed through that lens. The EAT confirmed in that case that the test set out by the Court of Appeal in Ladd v Marshall

1954 3 All ER 745

, CA.

[12]In that case, the Court of Appeal established that, in order to justify the reception of new evidence, it is necessary to show three separate matters – that the evidence could not have been obtained with reasonable diligence for use at the original hearing, that the evidence is relevant and would probably have had an important influence on the hearing and, finally, that the evidence is apparently credible.

[13]The earlier case law suggests that the interests of justice ground should be construed restrictively. The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd

[1982] ICR 440

decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review.

[14]More recent case law suggests that the "interests of justice" ground should not be construed as restrictively as it was prior to the introduction of the "overriding objective" (which is now set out in Rule 2). This requires the Tribunal to give effect to the overriding objective to deal with cases fairly and justly. Consideration

[15]The matters raised by the Claimant were considered in the light of all of the evidence presented to the Tribunal before it reached its decision. Much of this was in fact, explained by the Claimant during her submissions to the Tribunal and was considered by the Tribunal in reaching its original determination.

[16]Applying the Ladd v Marshall test, the Tribunal finds that almost all the new evidence put forward by the Claimant would have failed the first test; the few items that are genuinely new and could not have been obtained with reasonable diligence would have failed the second test, in that they would not have had an important influence on the hearing. An example of this is the letter from Helen Foster, Work & Wellbeing Advisor, from The Film and TV Charity. This letter is not a medical opinion. It is simply the view of the writer that it would have not been reasonably practicable for the Claimant to proceed with a Tribunal claim between March 2022 and August 2022. There is no evidence to support this contention and such a letter, even if produced at the hearing of 7 June 2024, would not have altered the outcome of that hearing.

[17]In any event, the evidence supplied by the Claimant does not add anything to the submissions she made to the Tribunal on 7 June 2024.

[18]The Claimant has provided a document confirming her ADHD diagnosis. This is dated 8 July 2021. I no not see that this assists the Claimant in her request of reconsideration. Disability is not an automatic justification for the claim being presented to the Tribunal outside the relevant time limits. Disabled individuals can (and do) satisfy the definition of disability in the Equality Act 2010 whilst still being able to bring their claims to the Tribunal within the relevant time limit. This can be so even where the disability is a mental health condition or a condition which affects their ability to think and to give instructions. So, it is not automatically the case that just because the Claimant was disabled it is ‘just and equitable’ to extend the time limit for presentation of the claim on the basis or assumption that she could not bring the claim within the time limit.

[19]For the same reasons as above, the Tribunal does not find that the Talking Therapies discharge letter assists the Claimant. It confirms that she was undergoing Talking Therapy and that she was discharged. It does not say that the Claimant was not able to bring a claim in the Employment Tribunal at that time.

[20]The Claimant’s contention that the delay will not have prejudiced the Respondent in any significant way is only her view. The Tribunal considered the length of the delay at the hearing on 7 June 2024 and found that it was a significant one. Employment Tribunal time limits must be looked at in the context of a three-month time limit (the primary statutory limitation period.) The Tribunal time limits are relatively short and so that is relevant when considering the length of any delay. The Claimant delayed by over five times as much as the original limitation period. So, it is not a minimal delay. Memories will fade in this time, and such a delay would affect a fair hearing.

[21]The grounds put forward by the Claimant all amount to a repeat of her case as put forward at the hearing on 7 June 2024. The basis of the request for reconsideration is essentially that the Claimant disagrees with the original decision.

[22]In Newcastle Upon Tyne City Council v Marsden

[2010] IRLR 743

, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include that there should be finality in litigation, which is in the interest of both parties.

[23]In addition, in Fforde v Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful, he is automatically entitled to have the Tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.

[24]The Tribunal does not consider that it is in the interests of justice to allow the Claimant a second attempt to put her case. The evidence she has provided does not support her request for reconsideration. Furthermore, the Tribunal does not consider that this evidence would have changed the outcome in any event. Finally, considerations of interests of justice should also have regard to the need for finality in litigation. If the Claimant is of the opinion that the Tribunal has made an error of law, then her correct route is to appeal the Tribunal’s decision to the Employment Appeals Tribunal.

[25]Taking all of the above into account, the Tribunal does not consider that it is in the interests of justice to reconsider the original Judgment.

[26]Accordingly, the Tribunal refuses the application for reconsideration pursuant to Rule 72(1) because there is no reasonable prospect of the Judgment dated 7 June 2024 being varied or revoked.

The Law

[1]The Claimant’s claim of unfair dismissal is dismissed by way of withdrawal.

[2]The Claimant’s claim of discrimination on the grounds of disability is dismissed for lack of jurisdiction. The claim was presented to the Tribunal outside the time limit in s.123 Equality Act 2010 and it was not just and equitable to extend the time limit to allow the claims to proceed (s.123(1)(b) Equality Act 2010).

[3]The Claimant’s claim in relation to other payment (notice pay and bonus) dismissed for lack of jurisdiction. The claim was presented to the Tribunal outside the time limit in s.23 Employment Rights Act 1996, when it was reasonably practicable that it could have been presented within that time limit.