Employment Judge G TobinIn person for claimantDate 4 April 2024
JUDGMENT
[1]The claimant was not disabled under s6 and sched 1 of the Equality Act 2010 for cervical spondylosis at the material time between 28 July 2022 to 16 August 2022.[2]Consequently, his claims of disability discrimination are dismissed.[1]The claimant’s application to strike out the responses is refused.[2]The first respondent’s application to strike out the claim is refused.[3]The claimant’s application to amend his claim is refused.[4]The claimant’s application for postponement is refused.
REASONS
The law
[5]The claimant requested written reasons for the decisions made at this hearing. These are those written reasons. Strike Out application: application to strike out responses by the claimant and counter application to strike out the claim by the first respondent.[6]The claimant made an application to strike out the respondents by email dated 19 March 2024. This was made for the following reasons:a. They had failed to promptly prepare the case bundle which caused the claimant a severe detriment and prevented him from completing his witness statement before the final hearing.b. And this delay unjustly deprived the claimant of the opportunity to seek legal advice.[7]The claimant in this email laid out a chronology of the delays from his perspective, explaining:a. The first respondent sought an amended schedule on 06 December 2023, which the claimant agreed to.b. The first respondent breached the amended date of 01 February 2024 for producing the bundle.c. The claimant only received a copy of the bundle after he had emailed the tribunal.d. The bundle was incomplete as it did not contain documents that the claimant had sent to the respondents, with these only being added on 15 March 2023. It is only then that the bundle was complete.e. The first respondent also changed the bundle and added documents several times. This affected the numbering, making it difficult to start writing a statement.[8]The claimant was asked on the afternoon of day 2 of the hearing whether he was still pursuing his application to strike out the respondents following discussion of it. And he answered to the effect that he was.[9]The claimant made the following oral submissions in support of his application to strike out the responses of the respondents:a. The first respondent was at fault in delaying the preparation of the bundle. This deprived him of seeking and having legal advice.b. Delays were impacting upon him a lot. There are fake documents included in the bundle.c. The claimant referred to misleading of the court at the previous preliminary hearing, with the claimant not being sent the same bundle relied on.d. The claimant raised that the bundle provided by the respondents for the hearing determining disability included his medical reports and documents. And these were relied on rather than the ones the claimant sent in on 03 February 2024.e. The claimant accepted when questioned that he had had all of the documents in his possession since around 01 February 2024 at the latest. He had a draft bundle and copies of the documents that he had wanted included. The claimant explained that his criticism of the draft bundle was that it did not have any page numbers.[10]Mr Stenson, for the second respondent, opposed the application and made the following submissions:a. The tribunal was determining disability of the claimant at the previous hearing, and the respondents only had the medical records of the claimant as he had disclosed them. These being included in a bundle cannot support striking out the responses, given these are necessary documents that EJ Tobin needed to see to determine disability.b. The respondents had disclosed the email trail which records the delay in preparing the bundle in this case. The headline being that a large fault for the delays lay with the claimant in not co-operating in the preparation for this hearing.c. The claimant was capable of preparing a disability impact statement for the previous hearing and a schedule of loss for this hearing. And therefore was capable of producing a witness statement without the need for legal assistance.d. And the additional documents the claimant refers to does not seem to have impacted on the claimant’s preparation, save for his witness statement today.e. There is no basis to strike out the responses. And a fair trial is still possible.f. The claimant must be saying that the issues with the bundle and the inclusion of the medical documents have affected this trial, but that cannot be the case in circumstances where the case is now ready to be heard.g. The matter affecting this trial is the claimant failing to produce a witness statement.[11]Mr Wilford, for the first respondent, also opposed the claimant’s application. And further, he made an application to strike out the claim based on unreasonable conduct. He made the following submissions:a. The tribunal has sight of the email sent to the tribunal from Asif, which shows the great lengths the first respondent has gone to, and the difficulties it has encountered in agreeing the final hearing bundle over a period of 3-4 months.b. From those, it is clear that the claimant was continually asking for new docs, approximately 180 pages, to be added.c. The claimant seemed fixed in his mind that it caused him some prejudice these not being included, despite being advised that he could dela with them in a different way, namely he could bring the additional documents to tribunal himself and refer to them.d. The vast majority of the documents do not appear relevant to matters before this tribunal as they are medical documents. And this is in circumstances where it has already been found that the impairment he brought his disability discrimination complaint was not a disability at the material time. These documents go to that issue.e. Both respondents engaged with the claimant to explain that it did not consider the additional documents to be relevant and invited the claimant to explain why they were relevant.f. The claimant did not engage with that correspondence but simply said that they were relevant, without providing any explanation as to why he said they were. The claimant then stated that if the documents were not agreed with then the consequences would lie with the first respondent.g. The parties agreed to two successive revised dates for witness statement exchange. First 23 February 2024 and then secondly 13 March 2024.h. Given difficulties with the bundle, the respondents suggested further revised dates of 15 March and 19 March 2024, but these dates were never agreed.i. The claimant countered with a suggested date of 22 March 2024. However, given that this was merely days from the final hearing, this was not agreed to.j. And it transpired that the claimant had not even prepared one for the first day of this hearing, despite this suggested date.k. It is not the first respondent’s fault that the claimant had not produced a witness statement. Although it is accepted that the first respondent may have done things differently, in hindsight. But this situation was created by the claimant.l. It was a willful act by the claimant to not produce his witness statement. And this has damaged the progress of this case.m. The claimant also seeks to attribute his inability to find legal representation to the conduct of the first respondent. However, this is his responsibility, and he had previously been represented in these proceedings.n. When considering alternatives to strike out, one of the witnesses is no longer employed by the first respondent and there is no guarantee that that witness would be available. She has agreed to attend this hearing but there is no guarantee that this will change.o. The claimant’s approach to this hearing and his preparation is unreasonable and vexatious. This is the first respondent’s opposition to the claimant’s strike out application but also an application by the first respondent to strike out the claim on the basis of either unreasonable conduct under Rule 37(1)(b) or for a failure to comply with directions of the tribunal under Rule 37(1)(c). The Rules on Strike Out[12]The Rules on strike out are contained within Rule 37 of the Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013. Rule 37 gives the Employment Tribunal the power, at any stage of proceedings, either on its own initiative or on the application of a party, to strike out all or part of a claim or response. Strike out must fall within one of several expressed grounds for strike out. Those relevant to this applications are: i. that the manner in which the proceedings have been conducted by the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious ii. Non-compliance with any of the rules or with an order of the tribunal iii. That the tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response.[13]The tribunal reminded itself of the approach to be adopted when considering whether to strike out a claim, as approved and applied in the Hasan v Tesco Stores (2016) UKEAT/0098/16 case: i. Has one of the specified grounds for striking out been established? ii. Does the tribunal consider, as a matter of discretion, that the claim should be struck out, or should the order be amended or should a deposit be ordered?[14]That highlighted in Hassan is the approach that this employment tribunal adopted when considering whether to strike out the claims.[15]However, consideration of whether a fair trial is still possible retains importance when considering whether as a tribunal we ought to use our discretion to strike out for the other grounds, including for conduct reasons and for strikeout for non-compliance with an order. Authority for this proposition is the judgment of Judge Richardson in Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371, who identified this as a factor to be taken into account, alongside others including the magnitude of the default, whether the default is the responsibility of the solicitor or the party, and what disruption, unfairness or prejudice has been caused (see paragraph 17).[16]In considering whether a fair trial was possible. We as a tribunal need to take account of all relevant circumstances.[17]As part of this analysis, we must include in our analysis the fairness to all parties.[18]This tribunal also considered that, as per LJ Sedley in Blockbuster Entertainment Ltd v James [2006] EWCA Civ 684, it would take ‘something unusual indeed to justify the striking out, on procedural grounds, of a claim which has arrived at the point of trial’. And further that the tribunal should consider whether there is ‘less drastic means to the end for which the strike-out power exists’. This builds on Judge Richardson’s decision that ‘…tribunals should consider whether a lesser sanction might be appropriate in the circumstances’ (at paragraph 33 of Armitage). Analysis and conclusion Claimant’s application to strike out responses[19]The claimant’s application was brought on the grounds that the respondents had failed to comply with tribunal orders in respect of the final hearing bundle.[20]The directions for final hearing preparation are contained in Employment Judge Horne’s Case Management Orders, that were prepared following the Case Management Preliminary Hearing on 26 September 2023. EJ Horne directed that the parties were to have sent to each other all relevant documents in their possession by 24 October 2024.[21]The first respondent was directed to try to agree the contents of the final hearing bundle by 07 November 2024, and deliver a copy of that agreed bundle to the other parties by 21 November 2023.[22]The parties agreed to vary the delivery of the agreed bundle until 01 February 2024.[23]The claimant was sent a copy of the bundle on 01 February 2024. However, certain documents that had been disclosed by the claimant were not contained in the bundle (largely medical documents relating to disability, which was no longer a live issue in this case) and the bundle was not paginated.[24]The claimant would not agree to the bundle of documents in these circumstances.[25]There was correspondence between the parties, with the respondents explaining to the claimant that the additional documents had not been included as they were irrelevant, and invited the claimant to explain on what basis he said they were relevant. The claimant appears to have failed to engage with that question in any of his correspondence requesting the documents to be added. For the avoidance of doubt, this tribunal considers the question of relevant to be a valid question.[26]The bundle was completed on 15 March 2024. And at that point the claimant gave the impression that his intention was to produce a witness statement. He clearly considered this to be possible and feasible.[27]The claimant’s application was refused. The claimant has not satisfied the tribunal that the conduct of the respondents was such to justify striking out the responses, or that there had been a breach of directions such as to justify strike out. The bundle of documents was settled., save for medical documents disclosed by the claimant that do not appear relevant to the issues in this case. The bundle, in any event had been completed by 15 March 2024. The claimant had access to all of the relevant evidence since at least 01 February 2024.[28]Further, the tribunal considers that a fair hearing is still possible. The bundle is now agreed. The parties have produced witness statements. The hearing can be split in two, with matters concerning the protected act and sick pay (documents were in the draft bundle sent on 01 February 2024) can be addressed at this hearing, with the remaining claims determined at a postponed hearing. The delay in the case returning will not be a significant delay. And the claimant can cross-examine individuals on his allegation of falsified documents at that next hearing.[29]In these circumstances a fair hearing was still possible. And the application to strike out the responses was refused. First respondent’s application to strike out the claim
Conclusion
[30]The first respondent’s application to strike out the claim is also refused.[31]The claimant at the start of this hearing was not in compliance with tribunal directions in respect of producing a witness statement. And ultimately the claimant’s approach has caused difficulties in the preparation of this case, which has affected whether it was ready to be heard.[32]However, the first respondent is at fault too. In that the first respondent sent to the claimant witness statements that he could not open without a password, with that password being withheld until the claimant had produced his witness statement.[33]The claimant’s decision not to produce a witness statement has made it difficult to have a fair hearing in this trial window.[34]However, the tribunal considers that a lesser sanction is more appropriate, given that a fair hearing is still possible (for the reasons outlined above).[35]Given a fair hearing is still possible and given that the new trial window is only a short delay. The first respondent’s application to strike out the claim is also refused. Amendment Application: The claimant’s application to amend his claim[36]The claimant attended a preliminary hearing in public on 27 February 2024 before Employment Judge Tobin. At this hearing an oral judgment was handed down with a determination that the claimant’s Cervical Spondylosis with nerve entrapment was not a disability at the time of the disability discrimination complaints.[37]The claimant made an application to amend his claim by email on 06 March 2024. This email was his formal application to amend his disability discrimination claim to include back pain, which he describes as having impacted his daily life to a greater extent than the Cervical Spondylosis with nerve entrapment.[38]On the afternoon of day 2, the claimant made the following submissions in support of his amendment application:a. The claimant had the back pain from the very beginning of these proceedings.b. He mentioned it to his then legal representative, back in October/November 2022. It was due to her inexperience that she did not include it in the claim. She told him that there was no need to mention back pain in the claim and therefore it was not included.c. The cervical issues were causing the back pain as far as he was aware at the time.d. When it was raised with the judge, he explained that they were distinct from one another. After which the claimant says he made an application to amend his claim to include back pain.e. The back pain was the worst impact.[39]Mr Stenson, on behalf of the second respondent, and opposing the application made the following submissions:a. The claimant was right that EJ Tobin had distinguished between the impairment of Cervical Spondylosis with nerve entrapment and back pain, with a clear reason that the medical documents supported a clear distinction.b. The claimant gave all his necessary evidence in his witness impact statement. This included the impacts that he was suffering including intense headaches and neck pain.c. EJ Tobin considered the impact statement and supporting evidence and concluded that the claimant did not have a disability as alleged at the material time. As at the time it could not be said to be long term or likely to be.d. The exact same finding would have been made had the claim included back pain, as the impact statement would have been the same and the same symptoms would have been considered. Especially in circumstances where the claimant says that all of these issues stem from an accident at work on 27 July 2022.e. The amendment application being pursued is substantial. It is a new factual basis to a claim, rather than relabeling of existing matters.f. The claimant’s position is that the back pain and Cervical Spondylosis are connected. And EJ Tobin has already made findings on that.g. When professionally represented, his claim should have made reference to a back impairment if that was his claim. It did not. There is no reason not to include it. Especially given that he now says that the back pain caused him the most difficulty.h. The prejudice to the respondents in allowing this amendment is significant. It would double the number of claims to be defended, which would inevitably add to the length of the hearing. And this is in circumstances where the parties have already incurred costs attending a preliminary hearing to determine disability, which has a sole purpose of ensuring a proportionate approach to hearings and reucing the burden on tribunals where possible.i. This is the claimant seeking to have a re-hearing of his disability issue, but on a separate condition.j. This would re-introduce a matter that has already been decided on, or at the very least should have been decided on at the hearing that was listed to determine the precise issue of disability.k. The claimant has made this application at a similar time to applying for EJ Tobin to reconsider his decision. This is a claimant that is simply unhappy with the decision. That is not grounds to extend the claim to include new facts out of time.l. To allow the amendment would be to render the findings of EJ Tobin null and void.[40]Mr Wilford, on behalf of the first respondent, and opposing the application made the following submissions:a. He endorsed the submissions made by Mr Stenson.b. The appropriate point to have made an application to amend the claim should and would have been at the preliminary hearing where disability was being determined. It is at that hearing where there was an open dialogue about disability and the circumstances.c. This would simply give the claimant a second bite of the cherry, in circumstances where his first bite did not succeed. Law on amendment[41]In considering the application to amend the claim, the tribunal applied the balance of injustice and hardship test (Selkent), and took account of important case law, including Ahuja v Inghams [2002] ICR 1485, Vaughan v Modality Partnership UKEAT/0147/20/BA and The Commissioner of Police of the Metropolis v Mr A Denby: UKEAT/0314/16/RN.[42]In considering this matter the tribunal considered and balanced the prejudice that would be caused to the claimant in not allowing the amendment application to succeed against the prejudice that would be caused to the respondent in allowing the application to succeed.[43]In Selkent, the Employment Appeal tribunal set out a non-exhaustive list of relevant factors which are to be taken into account in considering the balancing exercise of all the relevant factors, having regard to the interests of justice and the relative hardship that would be caused to the parties by the granting or refusing of the amendment. These were the nature of the amendment, the applicability of time limits, and the timing and manner of the application: “(4) Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant: The nature of the amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action. The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions eg, in the case of unfair dismissal, S.67 of the 1978 Act. The timing and manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”[44]The Presidential Guidance reaffirms the Cocking and Selkent guidance, noting that relevant factors include the three matters outlined in Selkent, and also noting that tribunals draw a distinction between amendments which seek to add or substitute a new claim arising out of the same facts as the original claim, and those which add a new claim entirely unconnected with the original claim.[45]With regard to time limits, the Presidential Guidance notes that the fact that the relevant time limit for presenting the new claim has expired will not exclude the discretion to allow the amendment, and also that it will not always be just to allow an amendment even where no new facts are pleaded. In particular, the Guidance notes that where there is no link between the facts described in the claim form and the proposed amendment, the tribunal must consider whether the new claim is in time and will take into account the tests for extending time limits. In this case, this was the just and equitable formula in relation to newly brought discrimination complaints. Amendment Application: analysis and conclusions[46]The claimant made an application to amend his claim by email dated 06 March 2024. This was to include an impairment of back pain for the purposes of a disability discrimination complaint which had previously been brought on a different impairment, namely the physical impairment of Cervical Spondylosis with nerve entrapment. In short, the claimant was seeking to revive a disability discrimination complaint that had been dismissed following a determination that the impairment on which he initially brought that complaint was not a disability at the material time, through amending his claim to include a different impairment. At the point of making the application there was no live disability discrimination complaint. As this had been dismissed at a hearing before Employment Judge Tobin on 27 February 2024.[47]In these circumstances the amendment was introducing something new, would require the respondents to undertake significant new enquiry and therefore is considered to be a substantial amendment by this tribunal. This weighs against allowing the amendment.[48]The latest of the specific allegations of disability discrimination concern the termination of the claimant’s assignment (the claimant says with both respondents) on 16 August 2022. For the purposes of time limits, the tribunal considers the relevant date to be the date on which the application is made. The application being made on 06 March 2024 is therefore at least 16 months out of time. This is a significant period beyond the threemonth primary time limit to bring a discrimination complaint contained within s.123 of the Equality Act 2010. The claimant has adduced no evidence and provided no submissions on why it would be just and equitable to extend time in these circumstances. The tribunlal based on the evidence before it and having considered the submissions of the parties has decided that it would not be just and equitable to extend time in these circumstances. Although not conclusive, this is a heavy weight in favour of refusing the application.[49]Turning to the timing and manner of the application. This was made just over a week after Employment Judge Tobin had determined that the claimant did not have a disability by reason of his pleaded impairment, that being Cervical Spondylosis with nerve entrapment, at the material time. And is in direct response to that decision. Further, the application is made only 3 weeks before the final hearing was due to start. This again weighs against allowing the application.[50]There is clear prejudice to the respondents in allowing the amendment, in that they have gone to the time and cost of preparing and attending a preliminary hearing that was listed to determine the disability status of the claimant. To allow the amendment would mean that effort and cost was wasted as it would defeat the purpose and determination of that hearing.[51]The claimant was represented at the time of presenting his claim form. There was a conscious decision not to include the back pain as a separate impairment at the time. And this was explained to Employment Judge Buzzard at the preliminary hearing that took place on 11 July 2023.[52]The claimant represented himself at the Preliminary Hearing before Employment Judge Horne on 26 September 2023. If he disagreed with the impairment being limited to Cervical Spondylosis with nerve entrapment then the claimant could have raised it himself at this point, especially given that at that hearing the listing of a hearing to determine disability was discussed.[53]The claimant has provided no explanation as to why an application to amend the claim was not made sooner. The only explanation is that the claimant disagreed with the decision of Employment Judge Tobin.[54]Furthermore, in respect of the second respondent, part of the disability discrimination allegation is that it terminated the claimant’s assignment with itself. The claimant relies on the document at p.175 of the bundle in this regard. This document makes it clear that the second respondent would look for an alternative assignment when the claimant was available for work again. This therefore has no prospects of success based on the evidence before this tribunal.[55]In the above circumstances, the tribunal concludes that the application to amend the claim is refused. Application by the claimant for postponement[56]The claimant made an application to postpone the hearing on both the first and third day of this hearing.[57]The application made on the first day was for the reasons extended above in respect of preparation of the bundle by the respondents and the impact that the claimant says this had on him in being able to prepare for this hearing and to find and instruct a representative. This was refused. The tribunal made adjustments to the hearing which meant that tribunal time would not be wasted and the hearing dates could be used to progress the case.[58]The claimant had had sight of all of the relevant documents in advance of this hearing (and all the documents relating to the protected act and sick pay were in the draft bundle in February). The hearing was restricted to deal with the victimisation claim only. And the claimant was afforded time to complete a witness statement. In those circumstances, and given that set out above, the application to postpone did not succeed.[59]The claimant repeated his application for a postponement on day 3. The claimant by this time had produced a witness statement. And the ET1 was detailed enough to stand as evidence where there were any gaps. This application in these circumstances was refused.
The hearing
[1]The claims of victimisation against both the first and second respondent are dismissed.
Evidence
[2]There are no claims remaining against the second respondent in these proceedings. The second respondent is removed from these proceedings.
INTRODUCTION
[3]This case was listed for a final hearing to commence today. The time estimate was four days.[4]The claimant made an application to strike out the respondents responses, the first respondent made an application to strike out the claim and the claimant made an application to amend his claim.[5]Following consideration and determination of those matters, and following a review of the readiness of the case to be heard, the tribunal decided that it would convert this hearing to a preliminary hearing held in public to determine three preliminary points:a. Did the claimant make a protected act in the way pleaded?b. Did the second respondent of knowledge of the protected act?c. Was the claimant subject to a detriment in respect of non-payment of statutory sick pay?[6]In short, the tribunal considered that it would be unfair to proceed with the final hearing given that the claimant had not had sight of the first respondent’s witness statements until the afternoon of the first day of this hearing in circumstances where he was unrepresented, and his first language was not English.[7]The tribunal did consider that the claimant could address the three identified points above. The three matters identified above were discrete matters. They did not involve a lot of evidence. The protected act was pleaded as being an oral disclosure, and therefore involved little by way of documentary evidence. The claimant had produced a witness statement for day 2 and his particulars of claim were sufficiently detailed to stand as his evidence. The claimant had had sight of all the relevant evidence by 01 February 2024, at the latest. The tribunal could ask questions and take evidence where there were gaps in his evidence. And the tribunal considered that determining these matters was in accordance with furthering the overriding objective. Particularly as it would in effect determine whether the second respondent remained in the process, given that there were no other claims brought against it.[8]The tribunal benefitted from a short bundle of documents that ran to 512 pages, although the tribunal only needed to consider up to circa 20 pages to determine the issues in question.[9]The claimant gave evidence on these matters, Ms Mikolajewska gave evidence (although in reality this was limited to paragraphs 13 and 14 of her witness statement) and Mr Young gave evidence (again, in reality this was limited to paragraphs 9, 12 and 13 of his witness statement).[10]A separate record of preliminary hearing has been released to the parties recording the management of this hearing.
LIST OF ISSUES
[11]The tribunal informed the parties on day 2 that it was only determining the following three matters:a. Did the claimant make a protected act in the way pleaded?b. Did the second respondent of knowledge of the protected act?c. Was the claimant subject to a detriment in respect of non-payment of statutory sick pay?[12]To ensure that the claimant was able to present his case on these three matters, the tribunal did not hear any evidence until day 3. LAW Victimisation[13]Section 27 of the Equality Act 2010 (‘EqA’) states that:(1) A person (A) victimises another person (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— … (c) Doing any … thing for the purposes of or in connection with the EqA 2010. (d) making an allegation (whether or not express) that A or another person has contravened this Act. Burden and standard of proof[14]Section 136 EqA provides, so far as is relevant: (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.[15]However, cases which show no more than an assertion of a difference of treatment and a difference of protected characteristic/status (per Mummery LJ at paragraph 56 of his judgment in Madarassy v Nomura [2007] ICR 867: “…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 unlawful act of discrimination.” CLOSING SUBMISSIONS[16]Both Mr Wilford and Mr Stenson made oral closing argument. The expectation was that the claimant would make oral closing submissions following Mr Stenson. However, he requested that he produce written submissions. The tribunal agreed to this, but limited his written submissions to two pages, and required them to be presented that same day (by 11pm). This was to ensure that the tribunal had sufficient time to deliberate and reach a decision on day 4 of this hearing. FINDINGS OF FACT We make the following findings of fact based on the balance of probability from the evidence we have read, seen, and heard. Where there is reference to certain aspects of the evidence that have assisted us in making our findings of fact this is not indicative that no other evidence has been considered. Our findings were based on all of the evidence and these are merely indicators of some of the evidence considered in order to try to assist the parties understand why we made the findings that we did. We do not make findings in relation to all matters in dispute but only on matters that we consider relevant to deciding on the issues currently before us.[17]The claimant attended work on 27 July 2022. The parties do not dispute this.[18]The claimant on 28 July 2022 did not attend work. He emailed Klaudia Kokan of the second respondent at 12.50 on 28 July 2022 (p.173). In that email he stated that “I’m sick today, I can’t come in, I have a pain in my stomach’.[19]The claimant sent a further email on 28 July 2022, this time at 13.19. This was sent to Aleksandra Follert of the second respondent, and explained that ‘I'm sick today, I can't come to work, I have a pain in my stomach and back.’[20]In neither of these emails sent on 28 July 2022 did the claimant raise any issues concerning race discrimination or him going to complain about race discrimination.[21]The claimant emailed Klaudia Kocan of the second respondent on 29 July 2022 at 09.28 (see pp184-185). In this email the claimant raised concerns about his workload on the 27 July (he references the day before yesterday), his lack of break, and that this caused him pain in his back and leg. And that this means he cannot now attend workThis was his notification of that. He further raises an issue to do with pay for an additional hour work that he had done. In this email he does not suggest any of the treatment was discriminatory due to race, or that it was differential treatment of him.[22]Klaudia Kocan forwarded on the claimant’s email to several people from the first respondent, including Ms Mikolajewska (see p.183). From this point Ms Mikolajewska was aware of the matters raised by the claimant in is email of 29 July 2022.[23]Ms Mikolajewska emailed Klaudia Kocan to enquire about who the supervisor was. Although Klaudia Kocan’s email on p.186 refers to having spoken to Paulina, the tribunal accepts Ms Mikolajewska’s evidence that this communication was through email rather than orally. We make this finding as the tribunal considered Ms Mikolajewska an honest and credible witness, whose evidence remained consistent throughout nd there was no evidence to the contrary.[24]Ms Mikolajewska did not get a response from Klaudia Kocan as to who the claimant’s supervisor was. And this matter was not raised again by either Ms Mikolajewska or Klaudia Kocan.[25]The claimant attended the premises of the first respondent on 29 July 2022. This was to collect some clothes that he had left on the premises and was not with the intention of raising allegations of discrimination with a member of the first respondent. That was the evidence of the claimant under cross-examination.[26]The tribunal finds that the claimant did not have a meeting with Ms Mikolajewska on 29 July 2022, and more specifically did not have a meeting with Ms Mikolajewska in which he raised concerns of race discrimination. The claimant’s case is that such a meeting took place, whilst Ms Mikolajewska’s evidence is that no meeting at all took place. The tribunal concluded on the balance of probability that no such meeting took place. In support of this the tribunal considered the claimant’s email of 29 July 2022 (referenced above, at pp184-185) and the claimant’s grievance document dated 05 August 2022 (see p.195 and further referenced below). In the email of 29 July 2022, the claimant does not make any reference to differential treatment or race discrimination being a concern, and this was only some hours before he says he raised it with Ms Mikolajewska. If this was a concern at the time and he was about to raise it with his manager, the tribunal would have expected to see some reference in this email at this point. Turning to the claimant’s grievance of 05 August 2022 (p.195). The claimant in this document makes no reference to differential treatment, makes no reference to race discrimination and makes no reference to having raised concerns with Ms Mikolajewska. These two documents created around the time of the alleged conversation makes no reference to the alleged discrimination that the claimant says he had then raised with Ms Mikolajewska, and in the grievance documents there is no reference to such a meeting with Ms Mikolajewska. It is in these circumstances and the lack of detail that the claimant provided in his evidence when asked as to the content of the alleged conversation that led the tribunal to this finding.[27]The claimant raised a grievance through an email sent to Klaudia Kocan of the second respondent on 05 August 2022 (p.195). In this document the claimant raises concerns about his pay. An injury at work. His workload. Lack of training. Lack of rest breaks. And matters concerning sick notes and sick pay. The claimant accepted that in this document he did not raise differential treatment, race discrimination, nor did he explain that he had raised concerns of discrimination in a meeting with Ms Mikolajewska on 29 July 2022.[28]The last day that the claimant attended work with first respondent was 28 July 2022. The claimant was informed that his contract for services had been terminated as he was unavailable for work. He received this notification at the latest 16 August 2022 (this is consistent with the claimant’s particulars of claim).[29]On 28 July 2022, the claimant was sent a letter from the second respondent informing him that he was not entitled to statutory sick pay (see p.176 and p.179).[30]Klaudia Kocan emailed the claimant on 08 August 2022 to inform him that he would be paid Statutory Sick Pay from his last day of work (see.197. Although Klaudia Kocan references 27 August in this email that is plainly incorrect as the email was sent before that date and therefore cannot be referencing a last working day that had not yet happened, and the claimant’s last working day was 27 July. Therefore, this must be a typo).[31]The claimant was paid statutory sick pay by the second respondent in his December pay slip (see p.318). This covered all statutory sick pay for the period up until 16 August 2022. This is the claimant’s evidence. And was also repeated by the claimant in his closing submission, where he sets out that he received all statutory sick pay up until 16 August 2022 in his December pay slip but was not paid for the period thereafter. CONCLUSIONS[32]The claimant’s claim of victimisation against both the first and second respondent all concern a conversation the claimant says he had with Ms Mikolajewska on 29 July 2022 (rather than 27 July 2022 as per the issues recorded by EJ Horne).[33]The tribunal has found that no conversation at all took place between Ms Mikolajewska and the claimant on 29 July 2022. And therefore, the claimant has not done the protected act as alleged. His claims of victimisation brought against both the first and second respondent must therefore fail.[34]Even if the tribunal is wrong on this and there was some sort of conversation, the tribunal would have concluded that the claimant did not raise any concerns of differential treatment or race discrimination in any such conversation. And the tribunal in those circumstances would have concluded that it was not satisfied that the claimant had done the protected act as alleged in any event.[35]In those circumstances the victimisation claim against both the first and second respondent must fail following our conclusion that no protected act was made.[36]And further, specific to the second respondent, the claimant in no way made it aware that he had had a conversation with Ms Mikolajewska in which he raised differential treatment or race discrimination. The claimant’s case in respect of the second respondent and its knowledge of the existence of any protected act rested on his grievance email of 05 August 2022 (the email of 29 July 2022 took place before any alleged meeting with Ms Mikolajewska and therefore could not reference any oral protected act he says he made to Ms Mikolajewska). It is clear on the face of the grievance document, and accepted by the claimant, that he did not make the second respondent aware of any alleged conversation with Ms Mikolajewska. His case against the second respondent was brough based on an unsupported contention that the two respondents must speak to one another and therefore the second respondent must have known. However, there was no reason for the tribunal to reject Mr Young’s evidence when he explained that the second respondent had no knowledge of any such alleged protected act and therefore his evidence was accepted. In those circumstances, the second respondent could not be subjectively affected by something it did not know about in any decisions it made against the claimant.[37]Furthermore, the victimisation complaint insofar as it relates to the second respondent is brought on a single detriment, that being of refusing to pay the claimant statutory sick pay.[38]As found above, the claimant was paid statutory sick pay covering the period of his illness up until the 16 August 2022, the date on which he was informed that his assignment with the first respondent had formally ended.[39]Strictly speaking his pleaded detriment is not made out, and therefore must fail.[40]However, this part of the complaint developed to cover not receiving statutory sick pay for the period from 16 August 2022 until the final date of his sick note, that being 31 August 2022. Even this fails. The claimant during this period had no contract for service. And therefore, had no entitlement to statutory sick pay. And therefore, not receiving statutory sick pay in circumstances where he had no entitlement cannot and is not a detriment.[41]So even had the tribunal concluded that the claimant had made a protected act (which it did not), and that the second respondent had sufficient awareness of it such that it could subjectively effect the decision making of it in respect of the claimant (which it did not), the tribunal would have concluded that the claim of victimisation against the second respondent must fail as it has not subjected him to the detriment as pleaded.[42]The victimisation complaint is the only live claim brought against the second respondent in these proceedings. That has now been dismissed. The second respondent will play no further part in these proceedings, save for if the claimant makes an application for a time preparation order in due course, on the conclusion of the final hearing against the first respondent. JUDGMENT having been given at the hearing and reasons having been requested by the claimant in accordance with Rule 62(3) of the Employment Tribunal Rules of Procedure 2013, reasons are set out as follows.
The law
[1]Employment Judge Horne listed this hearing to determine the following issue: Whether or not, between 28 July 2022 and 16 August 2022, the claimant had a disability consisting of the effects of the physical impairment of cervical spondylosis. Evidence[2]At the outset of the hearing the claimant complained about the hearing bundle. He said that this had not been prepared in accordance with the case management orders. I was more concerned that the bundle for this hearing included(a) material that the claimant had disclosed and(b) that he wanted to rely upon. I wanted to ensure that the claimant would not be taken by surprise by any of the respondent’s inclusions. Once I ascertained that I had all of the relevant documents and that all parties had had sufficient time to consider these documents, we proceeded. The hearing bundle amounted to 312 pages. I had read the pleading prior to commencing the case. I also read some of the documents prior to starting the evidence. I read all documents referred to me but informed the parties at the outset that they needed to bring to my attention all document that they regarded as relevant because, as a matter of course, Employment Tribunals do not read through the whole of a hearing bundle.[3]The claimant presented a disability impact statement. This consisted of 6-pages and 37-paragraphs. The claimant signed the statement at the hearing, and he confirmed the content under oath. We were assisted by an interpreter. Mr Rahman initially spoke to the claimant, and I satisfied myself that there were no difficulties between the claimant and the interpreter in understanding each other. The claimant was cross-examined by the respondent’s representatives, and I asked questions for clarification. The claimant insisted that he had no assistance in preparing his disability impact statement, which was not a big deal, but which I found unrealistic given the way the statement was drafted and the content of the statement.[4]Having heard the totality of the claimant’s evidence, I say as follows. The claimant would not answer many straightforward questions asked by the respondent’s representatives. I was satisfied that this was not a difficulty caused by the interpretation. I warned the claimant about possible adverse inferences. I intervened on a few occasions to tell him that he needed to answer the questions that he was asked. The claimant persisted in not answering straightforward questions. The claimant was evasive. So, I conclude that his evidence was unreliable on key points. I made finding of fact where these were supported by independent corroboration. I was unwilling to make findings solely or largely on the evidence of the claimant because I regarded him as an unreliable historian. The
LAW
[5]S4 EqA identifies “disability” as a protected characteristic. So, an employee should not be discriminated against on the basis of their disability. S6(1) EqA defines disability: A person (P) has a disability if—(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.[6]According to Goodwin v Patent Office 1999 ICR 302 EAT there are 4 different questions (or conditions) to determine disability within the meaning of the EqA.a. Did the claimant have a mental/and/or physical impairment? (The impairment condition)b. Did the impairment affect the claimant’s ability to carry out normal dayto-day activities? (The adverse effect condition)c. Was the adverse effect condition substantial? (The substantial condition)d. Was the adverse condition long-term? (The long-term condition).[7]In respect of, can carry out certain activities, for example cooking, a person may well be able to do this but often only with great difficulty. So, in order to constitute an adverse effect, it is not doing of the acts which is the focus of attention but rather the ability to do (or not do) the acts; see Goodwin v Payment Office. There must be a causal link between the impairment and the substantial adverse effect, but it need not be a direct link: see Sussex Partnership NHS Foundation Trust v Norris EAT 0031/12.[8]The time to assess whether the impairment had a substantial adverse effect on day-to-day activities is as of the date of the alleged discriminatory act(s): Cruickshank v VAW Motorcast Ltd 2002 ICR 729. Our reference period was set out by Judge Horne as 28 July 2022 to 16 August 2022.[9]So far as a long-term condition, if the impairment had not lasted 12 months, the Tribunal will need to decide whether the substantial adverse effect of the condition was likely to last for at least 12 months. The government’s Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011) stipulates that an event is likely to happen if it “could well happen” (see para C3). How long an impairment is likely to last should be determined at the date of the discriminatory act and not the date of the Tribunal hearing all: McDougall v Richmond Adult Community College 2008 ICR 431 CA. My
FINDINGS OF FACT
[10]I made the following findings of fact. I did not resolve every dispute on disability as I confined myself to the matter set out by Judge Horne. Where I considered it appropriate, I set out our reasons for making such findings. In making my findings of fact, I placed particular weight on contemporaneous or nearcontemporaneous documents and correspondence as a more accurate record of events. Statements and (to a lesser extent) submissions were, of course, central; however, for a statement that was written sometime after the events in question the author may have difficultly remembering what was happening at the material time. Furthermore, statements are often written through the prism of either advancing or defending the appropriate claims, which needs to be assessed.[11]The claimant appeared to be a frequent attender at his GP surgery, so I regarded his medical records as likely to be full and a fair account of his various conditions.[12]The claimant suffered a back injury on 27 July 2022. He reported to the GP a couple of days later that he was worked hard and was over-burdened with heavy work. He did not see or speak to a doctor, he merely said that he wanted this recorded in his notes. This was recorded as “Backache (First)” on 29 July 2022. The medical notes referred to the claimant complaining of pain in back and legs [Hearing Bundle page 164]. The claimant said in evidence that he thought that his back complaint would get better, which is why he did not escalate matters.[13]On 1 August 2022 the claimant requested a sick note when he attended the surgery on an unrelated matter. He was not seen by the GP, but he was given a fit note for 1 week saying “Back injury at work causing back and pain in legs” [HB163].[14]On 3 August 2022 the claimant had a telephone consultation with his GP, so he was not seen or physically examined. The claimant complained of lower back (or lumbar) pain radiating to the back of both thighs and numbness to the saddle area. It was recorded that he was independently mobile and had a normal gait. He had pain on all movement. The GP appeared unconvinced as he refers to this being incongruent with the history and examination. However, given the lower back pain complained of, the sciatica and the numbness in the saddle area the GP referred the claimant to accident & emergency for a MRI scan to rule out a serious condition called cauda equina syndrome [HB162].[15]The claimant was admitted to hospital on 4 August 2022. He stayed 5 days. The main reason for his admittance to hospital was shortness of breath, wheezing and cough, which was unrelated to any cervical spondylosis and the prognosis for this was likely undiagnosed asthma. The claimant does not refer to his breathing difficulties as a source of hospital admittance in his disability impact statement. His disability impact statement was at significance variance with the contemporaneous documentary evidence in respect of this crucial point. The claimant tried to relate his hospital admittance to his back pain, I determine, to create a misleading impression of his medical history. This undermined the claimant’s case further. The hospital discharge summary is at pages 195 to 196 of the hearing bundle. While in hospital the claimant underwent an MRI scan [HB305-309].[16]There is an entry in the claimant’s notes for 8 August 2022 in respect of musculoskeletal pain – back pain. This suggested no lumbar (lower back) problems were seen after the MRI scan. The MRI scan identified “moderate” spondylosis in the cervical spine with potential left nerve root irritation at C7. The cervical spine is high up in the spine, i.e. the neck section and consists of 7 vertebrae C7 being at the base of the neck. This is above the 12 vertebrae thoracic or upper back section, which in turn sits above the 5 vertebrae lower back or lumbar section, where the claimant reported his problem.[17]Significantly, the notes record the claimant as denying any root irritation within the neck and/or upper limbs. The notes were amended on 11 August 2022 following a discharge summary from the hospital [HB305-309]. The claimant had been seen by the spinal team and neurology team who felt that the symptoms were secondary to pain. They recorded that the claimant was able to mobilise (i.e. get up and walk), including on stairs, independently on discharge and given paracetamol, codeine and a short supply of diazepam [HB161-162].[18]On 10 August 2022 the claimant telephoned his GP. The consultation was recorded under cervical spondylosis with nerve entrapment, as by that time the GP practice had seen the MRI scan result. The claimant complained of bilateral limb pain and left shoulder pain. He was prescribed painkillers, given a sicknote, and a 2-week review was booked.[19]When the claimant was asked at the hearing how his symptoms were progressing during this 2-week period, the claimant said that they were the same or got worse. I do not believe him because this conflicts with the contemporaneous and authoritative contemporaneous evidence. On 24 August 2022 the claimant had a further telephone consultation with his GP. He had been prescribed pregabalin, which was a sedative and analgesic. The records say said that he respondent well but that he had problems with intermittent numbness, which was a feature of his lumbar/sciatica/saddle injury and not the cervical spondylosis. A further sick note was issued [HB158].[20]A further sick note was requested by the claimant on 26 September 2022 and issued by the GP, without any recorded assessment [HB157].[21]On 18 October 2022 the claimant had a face-to-face consultation with his consultant. He complained about worsening neck and shoulder pain [HB156]. This was the first time that any neck complaint was made.[22]The claimant clearly had a physical impairment, cervical spondylosis. This is an age-related degenerative condition. It is caused by wear and tear to the spinal discs in the neck. It is common for someone to have this condition for some considerable time before it is noticed of diagnosed. This was diagnosed because of the MRI scan was investigating the unrelated strain injury to his lumbar/sciatica/saddle.[23]The claimant was engaged in heavy lifting at work, and he strained his lower back and thighs. This was nothing to do with either the upper back (thoracic) or the cervical spine. The lower back and sciatica problem did not improve so he went to the GP. I am not convinced that the claimant’s back pain persisted, the respondents questioned whether he was seeking to make a person injury claim. That may or may not be the case, but I do not find the claimant credible in his evidence and I am unconvinced that the story he told the medical practitioners at the time was credible.[24]When the claimant was asked about the lack of reference in his medical notes to neck pain until October 2022, he said that he either did not mention neck pain because his low back pain was worse or it went unrecorded by the medical practitioners. He was not able to identify were this was mentioned but not properly recorded by a medical practitioner in the medical notes. I do not believe that successive doctors could not record a patient history or complaints accurately. The claimant said he had a conversation with a nurse while he was in hospital about his neck pain which went unrecorded. If such a conversation occurred, then I am not persuaded that his neck pain was of any significance to his lower back injury or to any other condition.[25]Anyway, the claimant complained of lower back pain caused by lifting at work. The low back pain, sciatica and numbness to his lumbar region are unrelated to the cervical spondylosis because the condition under my scrutiny relates to the neck and possibly shoulders and the claimant complained of an acute condition (back injury) as opposed to the gradual onset of a chronic condition (cervical spondylosis). The GP was unconvinced about the claimant’s symptoms but referred the claimant for an MRI scan to rule out the possibility of something more serious. The claimant was misleading about his hospital admission but while in hospital the MRI scan revealed the degenerative condition, the claimant had not previously complained of neck problems. He did not previously complain of shoulder problems. However, once he had the outcome of his scan, he complained of shoulder pain (which was later attributed to a muscle tear). It was not for some months later that the claimant said that he had neck pain. So his story changed and I determine that he changed his story to match the outcome of the medical enquiries.[26]The claimant did not present documentation from the physiotherapist to deal with cervical spondylosis referral, which is surprising, but I draw no inference from that because it may be that this evidence might not have assisted me either way.[27]The effect of cervical spondylosis on the claimant’s day-to-day activities was not substantial at the material time. He did not report any neck problems. The reason for the claimant’s hospitalisation was to rule out the possibility of a more significant medical condition and treat the claimant’s respiratory concerns. I am not persuaded by much of the adverse effects the claimant now contends because I do not find him credible and these matters were not documented at the material time, or indeed at all.[28]In any event, there is no evidence from which I could establish that as of 16 August 2022 the claimant suffered from adverse effects from cervical spondylosis which could last 12 months or longer. On 8 August 2022, at the time of diagnosis, the claimant’s condition was described as moderate, with potential irritation. He did not have any of the expected symptoms of that condition at the time. He was prescribed painkillers for the lower back complaint and was to be reviewed in a matter of weeks.[29]The claimant’s statement gives no indication of an ongoing degenerative condition. The “impacts of day-to-day activities” at paragraph 24 to 34, is inconsistent with the contemporaneous evidence. There is no reference in the hospital or GP records to limitations on lifting, walking, dressing, cooking, cleaning or sleeping. This is a claimant who would have ensured that such limitations were recorded in his medical history as he did so on 29 July 2022. So, I reject his evidence in this regard.[30]The contemporaneous evidence says that the claimant was able to mobilise and walk up stairs. He complained of pain but if this was at the level that he asserted then it was clearly and directly attributable to his strain injury to his lower back/thighs/saddle and not to a degenerative neck condition. There is no evidence to suggest that the cervical spondylosis adversely effected the claimant’s day to day activities or that this was substantial. There is no evidence that the claimant’s strain injury to his lumbar, thighs and/or thighs might cause or make worse his cervical spondylosis so in accordance with Sussex Partnership v Norris the claimant has not established a causal link between the lower back and sciatica problems and the cervical spondylosis.[31]Cervical spondylosis is a degenerative condition, so the condition is likely to last for 12 months or longer. But so far as ascertaining the long-term condition, that is not the question for me to determine. The question for me to determine is whether, from the time of our reference period, the substantial adverse effect of this impairment was likely to last more than 12 months, see Royal Borough of Greenwich v Syed EAT/0244/14. In respect of the likelihood of an effect being long-term and re-occurring, the assessment must be made from the information available at the material time, and later information should be disregarded, see McDougall v Richmond Adult Community College. Under the circumstances, following from above, there is no evidence from which I can be satisfied that the claimant could suffer a substantial adverse effect that was long-term.[1]The decision that the claimant applied for reconsideration was handed down to the parties following a hearing that took place on 25, 26, 27 and 28 March 2024. The written reasons for this decision were sent to the parties on 23 April 2024.[2]The claimant made an application for reconsideration by letter dated 07 May 2024. This application was made in time.[3]However, for reasons unknown to Employment Judge Butler, this application was never referred to him. This is an administrative oversight by the admin staff, for which EJ Butler can only apologise to the parties.[4]EJ Butler was made aware of this application by Employment Judge Ross by email dated 30 September 2025. And this was following the claimant having raised this with her at a Case Management Hearing that took place on 24 September 2025.[5]EJ Butler has prioritized this matter and completed this as soon as it was possible to do so, alongside other work commitments. The claimant’s application[6]The claimant’s letter in which he makes his application is 10 pages in length. And is arranged across 27 paragraphs. The Rules on Reconsideration Applications[7]The position with respect reconsideration of judgments is contained within Rules 68-71 of the Employment Tribunal Rules of Procedure 2024. According to Rule 68, a Tribunal, either on its own initiative or on the application of a party, may reconsider any judgment ‘where it is necessary in the interests of justice to do so’.[8]Under Rule 70 of the Employment Tribunal Rules of Procedure 2024, such an application is to be refused, without the need for a hearing, if an Employment Judge considers that there is no reasonable prospect of the original decision being varied or revoked. Where the application is not refused, the application may be considered at a hearing, or, if the judge considers it in the interests of justice, without a hearing. Where the latter course is the course to be adopted, the judge will give the parties a reasonable opportunity to make further written representations.[9]Simler P set out the approach to be taken by tribunals when considering an application for reconsideration in Liddington v 2Gether NHS Foundation Trust UKEAT/0002/16/DA:a. identify the Rules relating to reconsideration and in particular to the provision in the Rules enabling a Judge who considers that there is no reasonable prospect of the original decision being varied or revoked refusing the application without a hearing at a preliminary stage;b. address each ground in turn and consider whether is anything in each of the particular grounds relied on that might lead ET to vary or revoke the decision; andc. give reasons for concluding that there is nothing in the grounds advanced by the Claimant that could lead him to vary or revoke his decision.[10]Furthermore, Simler P, at paragraphs 34 and 35 of Liddington also explained the following: “A request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration. Where … a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.”[11]I have considered carefully the matters that have been raised in the claimant’s letter of 07 May 2024. Each relevant point is addressed in turn. Paragraphs 1-3 of Claimant’s application: The first respondent was in breach of Rule 92 of the Employment Tribunal Rules when submitting the final bundle. The claimant has no trust in the documents. The documents in the bundle were highly likely to be forgeries. The claimant was deprived of the ability to review documents and prepare for the hearing. The claimant’s health concerns were ignored. And gave the claimant only 1 day to prepare a witness statement.[12]This is a difficult submission to understand given what was raised, discussed and decided at the hearing.[13]The claimant had already made submissions in respect of the bundle, and this was already considered at the time. He made these as part of his strike out application and his application to postpone the hearing. These same issues concerning the submission of the final hearing bundle have already been considered, as set out in the Record of Preliminary Hearing.[14]Further, the only documents considered when making the decision on the victimisation claims which the claimant was the author of, and which the claimant has never contended were a forgery.[15]The claimant had known of this hearing since the Case Management Hearing of 11 July 2023. And this included the need to produce a witness statement. And in any event, as recorded, the claimant had had the bundle for at least 10 days before the first day of the hearing.[16]It is unclear which documents the claim contends that he needed additional time to review. The claimant was afforded an additional day (in addition to knowing of this hearing for some time) to produce a witness statement (which he should already have done before this hearing commenced) and consider a limited range of documents (these are set out at paragraph 64 of the Case Management Hearing and concern a total of 10 pages, at most). The claimant was afforded more time during his evidence, if that was needed.[17]The claimant made an application to postpone the hearing on both the first and third day. The claimant was able to raise any issues he wanted to raise, and this included his health concerns. The claimant did raise health issues during the hearing. However, as recorded, the claimant specifically confirmed to the tribunal on day 3 (see paragraphs 5-9 of the Case Management record) that he was fit to continue.[18]This submission does not support reconsidering the judgment. Paragraph 4 of the application: an allegation that the claimant’s evidence and explanations were not taken into account which leads to an allegation of bias[19]This is not a matter suitable for a reconsideration application.[20]However, it is clear from the decision that the claimant’s evidence was specifically taken into account. Paragraph 5: Weak Translation[21]This is a difficult submission to understand. The tribunal was able to present his case fully with the use of a translator. The translator was a professional person who assisted the tribunal throughout. The claimant was able to answer the questions he was asked appropriately. The tribunal was satisfied that the claimant gave clear and targeted evidence to the questions he was being asked. Paragraph 6: the claimant again raises that he was only given a day to review the required points. And that he was only instructed to consider specific points, which crossexamination went beyond.[22]No more is said in respect the time the claimant was afforded to review documents. As this was a final hearing, for which the claimant had sufficient time to prepare for, and the claimant was afforded additional time during the hearing.[23]The matter of cross-examination is addressed at paras 60-66 of the Case Management Orders. And is taken no further, as that sets out specifically what was explained to the claimant. The claimant has misrepresented that discussion here.[24]This submission does not support reconsidering the judgment. Paragraphs 7-25 of the application[25]These do not contain any matters that relate to an application to reconsider the judgment. Rather, the claimant is presenting a narrative that is not relevant to the application in part. And secondly, on matters that are relevant (around the protected act) this is an attempt to re-litigate the matter for which the tribunal has already heard the evidence and made its decision. Paragraphs 26 and 27[26]These add nothing more to the application. Inconsistencies in the judgment[27]The claimant raises that there are two inconsistent paragraphs in the judgment.[28]The first relates to paragraph 18 and 28. And the claimant is correct. Paragraph 28 should read that ‘The last day that the claimant attended work with first respondent was 27 July 2022’. However, this does not impact upon the overall decision of the tribunal and does not support the decision being reconsidered.[29]The tribunal does not consider it necessary to resolve any potential conflict in paragraph 29 and 30, as alleged by the claimant. Conclusion[30]The issues raised by the claimant in his application for reconsideration are all matters that were raised and considered by the tribunal at this hearing. And this led to 3 documents being produced by the tribunal:a. A judgment determining the victimisation complaint, having limited this final hearing to that complaint alone.b. Decisions on various applications made by the parties, which largely covered the matters raised by the claimant in this application.c. Case management orders, which provided further explanation to the approach of the tribunal.[31]The claimant has raised issues already taken into account by the tribunal in the decisions it made. And this application is simply trying to raise the same issues again.
CONCLUSIONS
[32]There is therefore no reasonable prospect of the original decision being varied or revoked.[33]The application for reconsideration is therefore refused. Approved by: