F Olanrewaju “L” Bello v London Borough Of Lewisham: 2305815/2023
EMPLOYMENT TRIBUNALS
Case No 2305815/2023
Between
F Olanrewaju “L” BelloClaimantLondon Borough Of LewishamRespondent
Before
Employment Judge TuejeMiss Imogen Brown (instructed by counsel) for respondentDate 24 July 2024
JUDGMENT
[1](1) The complaint of unfair dismissal is not well-founded and is dismissed.(2) The Respondent’s applications under rule 76 and 80 for costs are refused. JUDGMENT[2]The claimant’s amended application dated 8th August 2024 for reconsideration of the judgment sent to the parties on 31st July 2024 is refused, and that judgment is confirmed.
REASONS
There is no reasonable prospect of the original decision being varied or revoked for the reasons set out below.[1]The claimant originally requested a reconsideration by an application dated 2nd August 2024. This was followed and superceded by the amended application dated 8th August 2024 requesting a reconsideration (the “application”).[2]The concluding paragraphs of the application, which summarise the grounds of the application, read (adopting the same numbering): “This is sufficient evidence to show that the judgment was unsafe, unfair, and in need of investigation in order to sustain itself against later scrutiny. It is now established on the evidence, facts and law that the Respondent did not take reasonable steps when unfairly (constructively) dismissing the Claimant. The Claimant submits that on these grounds the Tribunal must reconsider the soundness of its judgment in light of this application and ahead of an approximation of quantum for the Claimant whether on grounds of unfair (constructive) dismissal, breach of duty care or breach of contract as shown above.”
Background
[3]The claimant was employed as an Exams and Data Manager pursuant to a contract of employment dated 25th August 2021. She was employed in this post from 1st September 2021 until she was summarily dismissed for gross misconduct on 24th July 2023. The respondent’s reason for dismissing the claimant were that she had slapped a pupil on 9th February 2023.[4]A claim for unfair dismissal was presented on 19th October 2023. The ET1 claim form was accompanied by a 4-page statement of case. The claimant maintained the respondent’s decision to summarily dismiss her was unfair.[5]The claim for unfair dismissal was listed for a final hearing on 19th June 2024 and 20th June 2024.[6]On the first day of the final hearing, the claimant, through her representative, Mr Egan-Ronayne, sought to argue her claim was for unfair (constructive) dismissal, intimating the respondent had breached her contract of employment, thus providing grounds for a constructive dismissal claim. Mr Egan-Ronayne also argued it was not necessary to amend the claimant’s existing claim to pursue a constructive dismissal claim. The respondent objected to a constructive dismissal claim being pursued, arguing it had prepared its case to meet a claim of “ordinary” unfair dismissal. This point appeared to have been resolved when Mr Egan-Ronayne accepted the claim had been brought under section 95(1)(a) of the Employment Rights Act 1996. The Tribunal expressly stated the claim was proceeding as a claim for unfair dismissal under section 95(1)(a).[7]On the morning of 20th June 2024, Mr Egan-Ronayne applied to amend the claimant’s claim on the grounds that the respondent had breached the implied term or trust and confidence and/or breached its disciplinary policy. That application was opposed by the respondent, and refused by the Tribunal.[8]In the event, there was insufficient time to complete the final hearing, which was therefore adjourned part-heard to 23rd July 2024. At the end of that hearing, the Tribunal orally announced judgment, dismissing the claim. A written record of the judgment, which is dated 24th July 2024, was sent to the parties on 31st July 2024.[9]The claimant’s request for a reconsideration is in respect of the decision dated 24th July 2024. Applications for Reconsideration[10]By rules 70 and 71 of the Employment Tribunals Rules of Procedure 2013 a Tribunal may reconsider any judgment on the application of a party, where it is necessary in the interests of justice to do so. Under rule 72(1), an Employment Judge shall consider any such request, and: “… If the judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the tribunal shall inform the parties of the refusal.”[11]Paragraphs 1 to 5 of the application consists of the claimant’s interpretation of the Tribunal’s decision. Accordingly, those paragraphs do not contain any substantive reasons supporting the request for reconsideration.[12]Paragraphs (1) to (3) of the application summarise the claimant’s assertions in respect of various aspects of the respondent’s case, and each paragraph expressly relies on the written closing statement submitted to the Tribunal at the final hearing, which the Tribunal had already considered before making its decision dated 24th July 2024.[13]More specifically, paragraph (1) asserts the claimant was dismissed based on an allegation of gross misconduct. Paragraphs (2) and (3) assert based on the facts, evidence and law, there was insufficient data and evidence, nor were there reasonable grounds to support a reasonable belief that the claimant was guilty of gross misconduct. However, these points seek to re-argue issues already raised at the final hearing, which have already been considered and rejected by the Tribunal. Accordingly, these points fail to meet the rule 72(1) the threshold.[14]Paragraph 6 of the application relies on the claimant’s assertion, in an e-mail sent to the respondent on 20th February 2023, that she had suffered trauma following the incident at work on 9th February 2023. The request for reconsideration states the claimant was exposed to psychological harm and trauma, and she therefore did not feel safe at her place of work. It continues, the respondent was in breach of section 2(1) of the Health and Safety at Work Act 1974.[15]The Tribunal notes no supporting medical evidence was provided in respect of the claimant’s psychological health at that time. Nor did the claimant rely on any provisions under the 1974 Act in the statement of case appended to the ET1 claim form, or in the witness statement dated 30th April 2024 prepared in support of her claim. These points are substantially similar to those already raised by the claimant when she applied to amend her claim, albeit the arguments now raised in the application are based on an alleged breach of a statutory duty. In any event, this argument or a substantially similar argument were raised, and rejected by the Tribunal, at the final hearing.[16]Paragraphs 7 to 9 of the application make factual assertions, about which the Tribunal made findings of fact having regard to the evidence and arguments presented at the final hearing.[17]The points raised at paragraphs 10 to 16 of the application argue that the respondent breached its disciplinary policy by failing to review the claimant’s suspension from work at the required intervals, and by failing to keep the claimant sufficiently updated regarding the progress of its investigation. The request for reconsideration further argues that in accordance with Edwards v Chesterfield Royal Hospital NHS Trust [2011] UKSC 58 these failures amount to a breach of contract.[18]The Tribunal considers that above arguments regarding an alleged breach of contract amount to re-arguing the same or substantially similar matters raised by the claimant during the final hearing. In particular, those matters raised in support of the application to amend her claim that was pursued on the second day of the final hearing.[19]That application was refused for a number of reasons, including the timing of the application in the middle of the final hearing would cause prejudice to the respondent, who’s evidence had already been completed.[20]At paragraph 16 of the application the claimant refers to, and reiterates, arguments raised in the application to amend the particulars of claim and the closing statement. As stated, the Tribunal considered the arguments raised in the claimants closing statement before reaching its decision.[21]At paragraphs 17 to 21 of the application the claimant argues that as a result of the respondent’s alleged breach of contract, the claimant was entitled to terminate the contract of employment, which would amount to a constructive dismissal. At the final hearing, the claimant had tried to argue the claim was for constructive dismissal, before accepting the claim was brought under section 95(1)(a) of the Employment Rights Act 1996. In the circumstances, the hearing proceeded on the basis that the claim was an unfair dismissal arising from the respondent summarily dismissing her on 24th July 2023.[22]It is also noted that the claimant impliedly accepted that the respondent’s dismissal was the basis on which the claim was brought. The original statement of case accompanying the ET1 deals with remedy as follows: Remedy Reverse dismissal to resignation.
Remedy
[23]While the Tribunal does not have the jurisdiction to grant the remedy claimed above, the remedy sought indicates the claimant was aware she had been dismissed, and made an ill-founded request to convert that dismissal to a resignation.[24]Therefore, the position is that the claimant was dismissed, had seemingly brought the claim on that basis, confirmed at the hearing the claim was brought under section 95(1)(a), unsuccessfully sought to pursue a constructive dismissal claim, and now requests a reconsideration on the grounds that she was constructively dismissed.[25]Paragraphs 22 and 23 of the application raise issues of fact. The Tribunal made all the relevant findings of fact necessary to determine whether the claimant was unfairly dismissed. Accordingly, these paragraphs do not identify any grounds which would have a reasonable prospect of establishing that it’s necessary in the interests of justice to reconsider the judgment.[26]Paragraphs 24 to 26 of the application reiterate generalised assertions made in the preceding paragraphs, which again, do not demonstrate any grounds which would have a reasonable prospect of establishing that it’s necessary in the interests of justice to reconsider the judgment.[27]Paragraph 27 of the application states the Tribunal must reconsider its judgment on the grounds of unfair (constructive) dismissal, breach of duty or breach of contract. However, as stated above, these are arguments that were already raised, considered and rejected by the Tribunal.[28]Therefore, the claimant’s reasons for requesting a reconsideration do not disclose any arguments that have a reasonable prospect of successfully establishing that it is necessary and in the interests of justice to reconsider the decision.