Judge Miller-Varey sitting aloneIn person for claimantMr Philip Warnes (instructed by Solicitor) for respondentDate 10 October 2022
JUDGMENT
[1]The Claimant’s claim for unpaid arrears of wages is struck out under rule 37(1)(a) because it was presented outside the time specified in sections 23(2) and 23(3) of the Employment Rights Act 1996 and there is no reasonable prospect of the Claimant showing it was not reasonably practicable for her to bring her claim within the necessary period or that there are grounds to exercise discretion to extend time.[2]The Respondent’s application to strike out the Claimant’s claim for unfair constructive dismissal is refused since none of the grounds in Tribunal Rule 37(1) are made out.
REASONS
[1]These reasons make reference to page numbers. Unless otherwise stated, these relate to the correspondingly numbered pages of the preliminary hearing bundle first provided for the hearing of 15 October 2021.
Background
[2]The Claimant was employed by the Respondent as a quality auditor between April 2018 and December 2020. In her original ET1 presented on 2 March 2021 the Claimant seeks(a) unpaid arrears of wages and(b) compensation for constructive unfair dismissal [p.6-17]. The Respondent resists both claims [p.21].[3]A preliminary hearing took place on 15 October 2021 during which the Tribunal identified the ET1 as somewhat unclear and the claims it advanced were problematic in a number of respects. The Claimant clarified her belief that she was underpaid wages between the end of her 12-week probationary period in 2018 and the implementation (she says, belatedly) of a promised pay rise in July 2019. EJ Doyle commented that on its face this complaint was out of time and there was nothing before him to address the time limitation problem, including within the ET1.[4]In relation to the constructive unfair dismissal claim, EJ Doyle included the following within his Case Summary:34. The claimant says today (although less apparently in her ET1) that she resigned because she felt that her employer was pushing her out. She cites the dispute about the under-payment of wages, and then a separate dispute in or around November 2020 about the issue of a new contract of employment that incorrectly recorded that the period of notice that she was required to give to the respondent was three months rather than one month. She regarded that as the final straw.35. However, for the first time today, the claimant also raises a much earlier dispute about the provision and wearing of work shoes in or around December 2019 or before. There is no mention of this in the ET1. The claimant will need to provide full particulars of it and to ask the Tribunal to be permitted to amend her claim.36. There are two further potential difficulties with the constructive dismissal claim.37. First, the claimant was looking at other work opportunities and accepted an offer of employment at about the same time as her resignation.38. Second, it appears that the claimant makes no reference to any of the above matters in her resignation letter. 39.None of that is necessarily fatal to her position that her resignation is a constructive dismissal, but I note the evidential difficulties she might face in establishing that her resignation was a reaction to the conduct of the respondent, as section 95(1)(c) of the Employment Rights Act 1996 and its associated case law might require[5]Accordingly, EJ Doyle directed a further Preliminary Hearing to consider if the claim might be amended (paragraph 2.3) and whether the claim as whole or either of the complaints might be struck out under rule 37, or alternatively made the subject of a deposit order (paragraphs 2.4 and 2.5).[6]The Claimant was ordered to put in writing to the Tribunal and to the Respondent’s legal representative the full extent of her complaints “in sufficient detail for the Tribunal and the respondent to understand both the wages complaint and the constructive dismissal complaint.” This was to be done no later than 1 February 2022.[7]Under paragraph 7.1 of EJ Doyle’s orders, the document provided by the Claimant is to be used as the basis for consideration of the various applications. The CMO devoted a number of paragraphs to where and how the Claimant could access information useful to the proceedings. Procedural issues at the hearing[8]On 16 January 2022 the Tribunal received an email from the Claimant together with 6 attachments. This was copied to the email address of the Respondent’s solicitor but did not then reach him. The email read as follows: “I am writing information and attaching correspondence as requested. I had my interview on the 16th of April with Charlotte Fairhurst , my pay was discussed on the Interview and i was told this would go in line with all other Qas after 12 weeks probationary period as did all other Qas on both sites. I started work on the 24 for 3 days then did my induction on the 30th then resumed work on the 1st if May, this was due to it being my 50th birthday and me have time away with my grandchildren then friends. The probationary meeting took place and Charlotte went on maternity leave. In April 2019, when our pay increased , my colleague pointed out i was on lesser pay and should of gone in line with them. This was discussed with my Manager. After several emails and i meeting with my Managers Manager i was told i might be considered the year after. I discussed this with the Factory Manager and in July i went in line with the other Qas, i requested the arrears and was told i would not recieve this, i then sent a letter to the Hr department and recieved a letter back , i have attached this, so you can see the start date they have written and how helpless i felt as the Hr department are there to help, this was the reason i did not pursue the arrears further. In Dec 2019 i was on my second pair of safety shoes, these had broken down and i was having pain in my foot. I emailed Health and Safety several times, i spoke to my Manager and requested could i wear suitable safety shoes i had purchased myself in April , he spoke to Health and Safety and they requested the specification of the shoe i sent this to my Manager and Charlotte via whattsapp but Barbara Mioze had Charlottes phone. I was told by Health and Safety i could not wear the shoes , i then sent them a picture of my foot and they said they would order some shoes and that the couldnt get my size i could either go up or down a size, i went up when they did come the were too big i demonstrated this to my Manager, i emailed Health and Safety and took the shoes to reception for them to collect, i did not hear from H+S again , i recieved a call from reception to pick some shoes up and they were the same shoe i had left 8 week previous i sent emails but did not hear back from H+S. I had to carry on working in the shoes and with pain in my foot I finaly got an xray due to covid this year and had an appointment with the Muscatel team, i was refered to a consultant and given cortisone on the 14.01.2022, the foot is damaged and will be managed with yearly cortisone, and possibly surgery when i am older, i have attached the xrays. In Nov i was given a new contract without any consultation and on investigating my notice period had been changed, i questioned this and was given no answer after requesting several times, my colleagues had stayed the same notice period only mine had been changed as all the contracts were the same document and version number, mine must have been manualy changed ,my colleague investigated this, this was the final straw for me i handed my notice in the following week . I have copied acas in with the information .”[9]On 18 February 2022 (i.e., the Friday before the preliminary hearing scheduled for Tuesday 22 February 2022) the Respondent sent to the Tribunal and to the Claimant via email, its skeleton argument for use at the Preliminary hearing. This document asserted that the Claimant had made no attempt to comply with the order of EJ Doyle. It submitted that the default by the Claimant constituted both non-compliance with orders and a failure to actively pursue her claim such that the claims should be struck out without further consideration (paragraph 4). It went on to argue for the same outcome on the alternative basis that neither complaint has reasonable prospects of success.[10]The Claimant replied to the Respondent’s email the same day. She wrote “please see attached”. However, there was no attachment. Instead, the email included within the body, the text from her email of 16 January, prefaced by the words “on the 16 Jan 2022, 22.13 [the Claimant] wrote...”. The text that followed was identical to that in the email to the Tribunal of 16 January 2022. Emails were then exchanged between the parties in which Mr Warnes(a) indicated he had not received the email of 16 January 2022 and(b) asked if the Claimant could forward anything else she wished to rely upon. The Claimant replied but nothing further was received by the Respondent’s solicitor.[11]On learning of these matters at the commencement of the hearing, the Tribunal attempted to send the Claimant’s emails with their attachments to Mr Warnes. These could not be delivered and an error message was instead received. Mr Warne indicated there had been isolated, similar incidents in the past when other senders’ messages had not been delivered but in those cases (as was the Tribunal’s experience) the sender would be notified with an error message. The Claimant told the Tribunal she did not receive such messages.[12]The Respondent opposed the admission of the attachments on two principal grounds:(a) the parties would not be placed on an equal footing because the Respondent had not seen them and(b) any adjournment for that purpose would lead to undesirable delay.[13]In the circumstances, and in accordance with the overriding objective, I determined that for the purposes of considering the applications I should have regard to the body of the Claimant’s email of 16 January (“the narrative email”) but not to the attachments. The reasons follow in paragraphs 14 to 17.[14]Paragraph 7.2 of the CMO directed that the basis for the consideration of all the applications would be “the document”. The onus was therefore upon the Claimant to put her case within the four corners of a document. She was given an adequate opportunity as well as suitable guidance to undertake this task. Only the email could be said to fulfil that function. None of the attachments were descriptions of the claim. Rather, the attachments (as the email makes plain on its face) were provided chiefly by way of supporting evidence.[15]The correct approach on an application to strike out is to take the allegations made by the Claimant at their highest. In other words, the assessment of prospect of success should be made on the footing that the factual assertions which the Claimant makes are capable of proof. That applies unless there are central facts which are instantly demonstrable as untrue. The Respondent has not asserted that here. It follows that the attachments - intended to be evidentially supportive of the claimed facts – could not add to the Claimant’s case which is already taken at its highest, for purposes of the strike out application. The position is somewhat different in the case of the Respondent’s alternative applications for deposit orders, where it is permissible to have some regard to the evidence on the merits.[16]Even though the attachments could afford limited advantage to the Claimant on the hostile applications she faced (for the reasons already given), the Respondent should nevertheless be given an opportunity to make its own assessment of them and to independently urge upon the Tribunal any issue of weight or relevance. Logically, this could only be done with prior sight of the documents and the opportunity to take instructions. This would necessitate an adjournment with the attendant delay and costs. This was not a proportionate step.[17]This conclusion was not altered by my express finding that the Claimant had taken clear steps to comply with the order in a timely fashion.[18]Following my decision about the document, Mr Warnes formally withdrew the assertions made within his skeleton alleging wilful non-compliance by the Claimant. Rather, he now relied upon non-compliance only to the extent that the material in the narrative email did not, he argued, materially advance the Claimant’s case beyond that which was in substance within the ET1. Mr Warnes submitted it was deficient because it did not allow the Tribunal and the Respondent to understand both the wages complaint and the constructive dismissal. Amendment[19]EJ Doyle directed that the hearing should consider the question of amendment of the ET1. As a matter of fairness that question should be considered prior to the applications to strike out. That accords with it also having been discussed with Mr Warnes at the earlier PH (as he told the Tribunal on 22 February) that, contrary to the CMO, he need not file his submissions in support of the strike out application until after the Claimant had been given a chance to provide a written document in accordance with paragraph 7.1 of EJ Doyle’s order.[20]There is no formal written application to amend from the Claimant but axiomatically, she would not have furnished the narrative email had she not wanted to rely upon its contents.[21]I permit the Claimant to amend her claim so that it comprises the ET1 together with the contents of the narrative email. In real terms this involves the addition of the allegation in relation to a dispute about the provision and wearing of work shoes.[22]In granting that application I have had regard to the Presidential Guidance on Case Management, Guidance Note 1 (Amendment of the Claim and Response including adding and removing parties), and weighed the relevant factors to be balanced as set out in paragraph 5 namely: the amendment to be made, time limits and the timing and manner of the application.[23]In my judgment the amendment involves the addition of new factual allegations relating to the existing unfair dismissal claim which the Tribunal considers (and the Respondent has not contested) was presented in time. It does not give rise to any new or different complaint which is likely to unjustifiably prejudice the Respondent by being added at a later stage. Of relevance here is: It was always clear from the existing ET1 that the Claimant relates her resignation in December 2020 to “all that she had gone through” with the Respondent in the year previous year i.e. December 2019 – to December 2020). The allegations about the work shoes are clearly within that time period, starting in December 2019 and extending (from the email of 16 January 2022) until well into 2020 (the Claimant refers to a period of eight weeks). This is not the aspect of the complaint which goes back latest in time – the underpayment issue identified in the ET1 goes back to 2018 and the Respondent has already found it possible to plead facts directed to events at that time in its ET3. The Respondent has also been on notice of the additional allegation since October 2021 when the Claimant raised it in the Preliminary Hearing. The latter occurred only 7 months after the Claim was issued. At that stage (and because of the prompt identification of the need for a Preliminary Hearing in May 2021) witness statements had not yet been exchanged. Whilst the allegations therefore add to the facts which the Respondent needs to consider and respond to in its evidence for trial, it does not disproportionately or unfairly burden it because it is already concerned with the Claimant’s employment relationship with it over this period Excluding the amendment to its pleading and any disclosure additional to that provided before 12 May 2021 (if any), it has not occasioned additional avoidable work or imposed additional avoidable cost. On the other hand, the prejudice to the Claimant of refusing the amendment is potentially significant. At its highest, and with the amendment, she has three dominant issues from which her claim flows. An allegation that, in essence, an employer is knowingly indifferent to injury caused by its prescribed workwear and consistently fails to address it is capable of adding weight to an unfair constructive dismissal claim. Substantive compliance with EJ Doyle’s order[24]I have taken into account too that, in certain limited respects the email of the Claimant lacks optimal clarity, as EJ Doyle was clearly keen to achieve. An example is that it does not reference exact dates. However, in accordance with the overriding objective I take into account that the Claimant is not legally represented and on the evidence before me, the email reflects her best efforts to comply with EJ Doyle’s order. I also consider that consistent with the narrative email, only one set of dates can be reasonably understood to apply. In my strong view the fact the Claimant’s pleading is not on a par with a professionally drafted pleading is not a sound basis for either refusing to allow the additional allegation or holding that despite having furnished the email before the deadline of 1 February, the Claimant is somehow in breach of EJ Doyle’s direction because of the quality of the document she has produced. In my assessment any residual uncertainties in the Claimant’s claim can be remedied by the Respondent seeking further information or her filing her witness statement first. The strike out applications[25]Having rejected the submission that the Claimant is guilty of noncompliance, the Respondent’s applications rest solely on r. 37(1)(a) i.e., that the claim or a part of it “has no reasonable prospect of success”.[26]It is well settled that the discretion arising is one which should be used sparingly and with caution. Where there is a dispute of facts, a claim should be struck out in the most exceptional circumstances. This could be where there is no real substance in factual assertions because they are contradicted by contemporaneous documents.[27]I deal with the applications separately in turn, setting out something first in each case of the applicable legal principles. The unpaid wages claim[28]It was clarified at the previous preliminary hearing that the Claimant’s claim is not an equal pay claim. Under 23(2) therefore the Tribunal is without jurisdiction to consider her claim unless it is presented before the end of the period of three months beginning with the date of the payment of the wages from which the deduction was made. By s.23(3) where the complaint relates to a series of deductions, the period of three months begins with the last deduction or payment in the series. Both of these limitations are subject to s.23(4) whereby a Tribunal may still consider a complaint made out of time if two conditions are satisfied(a) it was not reasonably practicable for the claim to be presented in time and(b) it has been presented within such further time as the Tribunal consider reasonable.[29]The first payment that Claimant says the Respondent did not make was in or around July 2018 (see paragraph 35 below) and the last was July 2019. At that stage, the alleged agreed increase was implemented. Assuming in the Claimant’s favour (as this maximises both the quantum of her claim and the time for presenting it), there was a series of payments, the primary limitation period expired in October or November 2019. Her pleading, even taking account of the allowed amendment, does not explain why her claim was not issued by that time or give reasons why the complaint was not then brought for a further 15 or 16 months. She was directed to deal with this aspect in her amendment document (paragraph 7.1 of EJ Doyle’s order). It was also explained, fully and clearly, the potential limitation issue she faced.[30]In the circumstances, and on the material advanced, there is no reasonable prospect of the Claimant establishing that the Tribunal has jurisdiction to hear her claim. It is also proportionate to strike it out since it will save avoidable time and expense at trial by the parties - especially the Respondent – having to deal with the Claimant’s actions in relation to issuing her claim. The claim of constructive unfair dismissal[31]I derive from the case law the following principles of general applicability to a claim for constructive unfair dismissal: Whether there has been a repudiatory breach of contract should be objectively assessed and the employer’s subjective intention is not relevant (Leeds Dental Team Limited v Rose UKEAT/0016/13/DM). The breach may be of a particular express term (e.g., agreed wages) or of an implied term, including the duty not to undermine trust and confidence. A breach may be actual or anticipatory. It is anticipatory where, before performance of the obligation is due, the employer indicates that it does not intend to honour the term(s) of the contract at the moment when performance is due. An anticipatory breach will still entitle the employer to treat the contract as discharged if it is unequivocally expressed. In general, there is well established distinction between cases where the fundamental breach is comprised of a course of conduct taken together and cases where a one-off, single act by the employer is relied upon as fundamentally breaching the contract. In particular the following principles are relevant: The act precipitating the resignation in a last straw case need not itself be a breach of contract (Lewis v Motorwold Garages Ltd 1986 ICR 157 AC) The last straw, if an incident which is part of a course of conduct that together constitutes a breach of the implied term of trust and confidence, will revive the employee’s right to resign. In that situation it does not matter that they worked and affirmed the contract after earlier incidents forming part of the course of conduct (Kaur v Leeds Teaching Hospitals NHS Trust 2019 1 ICR 1, CA) The last straw does not need to be proximate in time or of the same character to the previous act of the employer (Logan v Celyn House Limited EAT 0069/12 and Omilaju v Waltham Forest London Borough Council 2005 ICR 481). It need not be blameworthy or unreasonable but must contribute to the breach of the implied term. An act which is entirely innocuous cannot be a final straw, even where it is interpreted by the employee as hurtful and destructive of his trust and confidence. (Omilaju).[32]There are two overarching bases to the application to strike out the unfair constructive dismissal claim. The first is that the Claimant’s case cannot be a last straw case. The Claimant resigned in December 2020 which the Respondent says was more than a year after the wages and shoes issues arose. The fact that in the meantime she attended work and performed her duties and raised no grievance, mean, the Respondent says, that she has affirmed the contract. Further, the near 12-month gap between the alleged final breach (contract with extended notice period) and penultimate breach (work shoes) mean it cannot reasonably be argued that there was a series of minor breaches culminating “in the last straw”.[33]The second submission is that the single breach which post-dates affirmation of the contract is not itself capable of amounting to a breach of contract causing resignation. The Respondents says here: On no assessment can it be characterised as an actual breach which could have caused a resignation - the extended notice period could not have been triggered until her resignation. It was not an anticipatory breach akin to the situation in which an employer threatens to lawfully terminate the employee The cause of the erroneous notice provision being inserted was, the Respondent says, straightforward error which as a matter of evidence the Claimant has not countered. In his oral submissions Mr Warnes said this was something the Claimant would “have to accept” which I take to mean that the Claimant is not now and will never be in a position to gainsay the evidence of the Respondent on this matter, being ultimately one within its knowledge.[34]Since I have granted leave to amend, I must make my evaluation of the prospects taking into account the amended claim and assuming that the Claimant’s allegations are all capable of proof to the requisite standard.[35]It is helpful here to record and analyse the amalgam of the facts asserted across the ET1 and the Claimant’s email of 16 January, relevant to the question of breach and of affirmation. I summarise them chronologically as follows: She enjoyed a contractual right arising from a direct verbal agreement in April 2018 to be paid an equal amount to other quality assessors beginning 12 weeks after her probationary period [ET1, p. 12, paragraph 1, narrative email, paragraph 2]. She complained in various ways about this between April 2019 (when she learned her pay was not equal – narrative email, paragraph 5) and July 2019 [narrative email paragraphs 5 – 8 and ET1, p.12 paragraph 6 ] By July 2019 the Respondent had committed through its management to the position of not paying the arrears but implemented the increase [ET1, p12, paragraph 6]. The Claimant then corresponded with Human Resources (HR) who were unhelpful to the Claimant and did not cause the outcome to alter. This caused her not to actively pursue the arrears further during her employment [narrative email, paragraph 8]. In December 2019 the Claimant’s second pair of work shoes had failed, she had foot pain and sought permission repeatedly to wear shoes she herself had purchased. This was declined and she was promised some new shoes by the Respondent, albeit not in her exact size. They were unsuitable and returned. The unsuitable footwear was re-presented to her in around February 2020. The Claimant continued to chase this but her emails went unanswered. She was forced to carry on working in unsuitable shoes, with pain in her foot [narrative email, paragraphs 9-12]. In November 2020 she was issued a new contract in which her notice period had been extended from one to three months. To her then knowledge, she was the only one of her colleagues affected and owing to the contracts being “document managed”, the amendment to her notice period, was done “manually” [p.12 ET1, paragraph 7 – 9]. She relies on investigation of this by her colleague [penultimate paragraph, narrative email]. She also sought an explanation “several times” about why her contract was now drafted in this way which were unanswered over the period of a week prior to her resignation [p.12 ET1, paragraph 10, narrative email, penultimate paragraph]. (It is also relevant to mention here that the Response asserts that the Claimant was told the insertion of the clause was in error after she left her employment. This in turn, was because, the Respondent says, she had not raised it with the Respondent prior to leaving.) The Claimant says at this stage she was offered regular shifts at a hospital. She handed in her notice because she could not go through all she went through the year before and did not know what to expect next (ET1, p.12 paragraphs 12 and 13).[36]I am satisfied that the Claimant has some prospect of showing there was a series of breaches culminating in a last straw. I accept the Respondent’s submission that the final straw cannot be entirely innocuous or utterly trivial following Omilaju. The straw that broke the camel’s back in that case was the employer not paying the Claimant for leave taken to attend his own employment tribunal. However, this was in accordance with the express terms of the contract since the Claimant had not sought paid leave (as was his right in the case of attending a Tribunal). It was found to be both in compliance with the contract and objectively reasonable conduct, by the first instance Tribunal. This was not disturbed by the Court of Appeal. Factually therefore it is distinct from this case where the Respondent does not seek to answer for its behaviour by reference to the contract; it does not assert a right to unilaterally extend the notice period by 300% nor any express provision within the employment contract which somehow protects an unexplained mistake of that nature from breaching its duty of trust and confidence. The key ratio of the Omilaju is set out in these paragraphs which I reproduce here for ease (my emphasis): “19. The question specifically raised by this appeal is: what is the necessary quality of a final straw if it is to be successfully relied on by the employee as a repudiation of the contract? When Glidewell LJ said that it need not itself be a breach of contract, he must have had in mind, amongst others, the kind of case mentioned in the Woods case at p 671f-g where Browne-Wilkinson J referred to the employer who, stopping short of a breach of contract, "squeezes out" an employee by making the employee's life so uncomfortable that he resigns. A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase "an act in a series" in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.20. I see no need to characterise the final straw as "unreasonable" or "blameworthy" conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.22. Moreover, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee's trust and confidence has been undermined is objective (see the fourth proposition in para 14 above).”[37]From this I accept that the test is objective and not dictated by the hurt the Claimant may have felt. However, they key question in my view is has the Respondent shown, indefeasibly, that its actions are “entirely innocuous” or that the Claimant has no reasonable prospect of showing that they were, objectively, other than of that nature? It is clear from Omilaju that “entirely innocuous” is not synonymous with blameless.[38]Two points are relevant. First, although the prospects are in my judgment slim, the Claimant may, perhaps with the benefit of disclosure relating to the Respondent’s document control processes and/or through witness evidence of her former colleague who she says investigated, be able to demonstrate that the contractual amendments could only have been done by an individual rather than through some automated process. It does not follow from it being done manually, that a mistake is negated and a deliberate attempt to treat the Claimant unfavorably is shown. Naturally, however, it reduces the probability of a mistake being the cause, and certainly calls for a greater explanation from the Respondent. I reject therefore that the Respondent’s factual position that a coincidental error occurred (as in, coincidental to the other disputes with the Claimant) is somehow incontrovertible. The conclusion here will depend on the evidence advanced on both sides, and that is quintessentially fact sensitive. Of course, the Claimant undoubtedly faces a challenge in proving her case; the fact that the Respondent ultimately did not hold the Claimant to 3 months is persuasive but not conclusive. That only arose after she had tendered her resignation.[39]Second, it also seems to me that the Claimant’s case of last straw does not depend exclusively on showing bad faith, albeit that seems to have been her subjective inference of the last act. The Respondent is clear that the fact of the new notice period being an error was not directly communicated to the Claimant until after she tendered her resignation. They have not pleaded the fact of a mistake was or should have been otherwise manifest. The Tribunal at trial will be concerned with the objective interpretation of the Respondent’s actions and the Claimant’s response up until and including the moment of resignation. That will be seen through the prism of their extant relationship – as it was by reference to the terms of the employment contract in Omilaju. However, if the Respondent is shown, for example, to have fostered such a climate of distrust and then to have recklessly released a revised contract that uniquely prejudiced the Claimant’s position compared to her peers and to have withheld from promptly allaying legitimate concerns of the Claimant about it as she alleges, it seems to me this may be capable of founding a breach – even though the actual motivation for the change may not have been unfair or indeed, intended. That is not the same as saying the Claimant’s subjective interpretation is what counts.[40]I deal then with the Respondent’s argument about the length of time between the alleged second and third breach. I cannot accept the submission that there was in excess of a year between the wages and shoes issues (paragraph 6 of the respondent's skeleton), and the tendering of her resignation. It is clear the Claimant alleges that there was less time than that. For example, she talks in her narrative email about an eight week wait after December 2019. There is no authority of which I am aware which indicates as a rule of thumb or otherwise, a gap in time between alleged breaches beyond which a claim of a course of conduct cannot be made out. Dyson LJ (as he then was) rejected in Omilaju that “an act in a series” had a technical meaning. I also consider the nature of the breach in relation to the unsuitable and (on the Claimant’s case) injury-causing work shoes may be found to be ongoing. I say this not in reference to the point about affirmation. As a matter of law, the effect of the last straw is to revive the right to resign. If, however, the Respondent is right, and there needs to be a sufficient temporal connection, the evidence about this will need to be examined to determine how long the period of time actually was. Such an issue is not suitable for summary disposal.[41]The Respondent’s second overarching submission in these circumstances cannot take its application further and I do not deal with it therefore.[42]For all of these reasons, the Respondent has not shown the Claimant has no reasonable prospect of demonstrating a series of breaches cumulatively amounting to a repudiatory breach of contract. Tribunal Judge A Miller-Varey (acting as an Employment Judge) 15 March 202221 April 2022 ...................................................................... For the Tribunals Office Notes 1. Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.
Introduction
[1]The claimant in this case, Miss Horrocks, was employed by the respondent as a Quality Auditor between April 2018 and December 2020. In her original ET1 presented on 2 March 2021 she sought to bring a claim for unpaid arrears of wages and compensation for constructive unfair dismissal. Both claims were resisted and her claim for unpaid wages was later struck out by Judge Miller-Vary.[2]Following an initial preliminary hearing on 15 October 2021 there was a further open preliminary hearing on 22 February 2022 which considered both an application to strike out the claims and an application from the respondent for a deposit order in relation to the unfair dismissal claim. Following that hearing Judge Miller-Varey made a deposit order in relation to the constructive unfair dismissal complaint.[3]Judge Miller-Varey provided a detailed judgment which explained why she had decided not to strike out the complaint of constructive unfair dismissal because it had no reasonable prospect of success, but her judgment went to some length to explain the law in this area and the hurdles which the claimant would have to overcome if she were to succeed in her claim. Grounds for making the deposit order[4]In terms of the despot order specifically, Judge Millar-Vary found that two of matters raised by the claimant could amount to breaches (although without being in position to consider any evidence from the respondent so she did not find that they were), but identified that the claimant faced both evidential and legal burdens with the last straw event and noted that it seemed that the claimant’s prospects for proving that the respondent’s conduct in that regard was not “entirely innocuous”, were slim.[5]She also identified that the claimant faced an evidential burden in demonstrating the extent to which, objectively, extending the claimant’s notice period contributed to the breach of implied trust which she warned the claimant would not be straightforward. She also identified that, in essence, there may be evidential issues with the claimant showing that the reasons for the claimant’s resignation were what she now claims when they are not referenced in her letter of resignation and her resignation and acceptance of new employment were so near if not coincidental in time. Documents considered in reaching my Judgment[6]In reaching my judgment I considered the following:(a) A short bundle of documents which included some additional documents produced late by the respondent, and which ran to some 92 pages.(b) Witness statements for the respondent, from: (i) Ryan Battersby (Deputy Health and Safety Manager); and (ii) Robert Coar (HR Officer), together with their oral evidence.(c) A witness statement from the claimant comprised of seven short paragraphs set out in an email dated 7 October 2022 and in her oral evidence.(d) Oral submissions made by the parties. The law: constructive unfair dismissal[7]Section 95(1)(c) of the ERA provides an employee is dismissed if: - “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[8]An employee is “entitled” so to terminate the contract only if the employer has committed a fundamental breach of contract, ie. a breach of such gravity as to discharge the employee from the obligation to continue to perform the contract. The conduct of the employer must be more than just unreasonable or unfair to constitute a fundamental breach. I must ask the following questions: -a. What are the relevant terms of the contract said to have been breached?b. Are any of the alleged breaches made out (the burden of proof being on the employee)?c. If so, are those breaches fundamental?d. Did the claimant resign, at least in part, in response to the breaches not for some other unconnected reason and do so before affirming the contract.e. If the answers to questions (b), (c) and d) are affirmative, there is a dismissal.[9]If there is a dismissal it is then for the respondent to show the reason for dismissal. Establishing fundamental breach of contract[10]Contractual terms may be express or implied. Whether a breach of any of those terms, including the implied term of trust and confidence, is fundamental is essentially a question of fact and degree. In terms of the implied duty of trust and confidence, an employer must not, without reasonable and proper cause, conduct itself in a manner which is calculated or likely to destroy or seriously damage the relationship of confidence and trust between an employer and an employee. It is not necessary for the employee to show the employer intended any repudiation of the contract. The Employment Tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its cumulative effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it any longer.[11]The employer’s motive is irrelevant. The test of fundamental breach is purely contractual, and the surrounding circumstances are not relevant, at this stage, although they may be relevant to the reason for the dismissal.[12]A breach of the implied term of mutual trust and confidence may result from a number of actions over a period when taken together may cumulatively. The last straw does not have to be a breach of contract in itself or of the same character as the earlier acts. Its essential quality is that when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant. An entirely innocuous act by the employer cannot be taken as the last straw, even if the employee genuinely but mistakenly interprets it as hurtful and destructive of their trust and confidence in the employer. Employee’s response to the breach[13]Resignation is the employee accepting that the breach has ended the contract. Conversely, they may expressly or impliedly affirm the contract and thereby lose the right to resign in response to an antecedent breach. Delay of itself does not mean the employee has affirmed the contract but if it shows acceptance of a breach, then in the absence of some other conduct, reawakening the right to resign, the employee cannot resign in response to the earlier breach.[14]Even if there has been a fundamental breach which has not been affirmed, if it is not at least in part an effective cause of the employee’s resignation, there is no dismissal.[15]If the claimant shows that he has been dismissed, I then turn to consider the reason for dismissal. Reason for dismissal if the employee has shown they were dismissed[16]It is for the employer to show that it had a potentially fair reason for dismissal in any case where a dismissed employer has more than 2 years continuous service. Even a constructive dismissal may be fair if the respondent shows a potentially fair reason for its breach and that it acted reasonably. However in this case the respondent did not seek to show that it had a fair reason, it simply denied the dismissal.
Findings of Fact
[17]I have made my findings of fact on the basis of the materials before me taking into account contemporaneous documents where they exist and the conduct of those concerned at the time. I have resolved such conflicts of evidence as arose on the balance of probabilities. I took into account in my assessment the credibility of witnesses and the consistency of their evidence with the surrounding facts. I have not made findings of fact in relation to every matter which was contested in evidence before me, simply those which were material to the determination of the legal issues in this case. I gave brief oral reasons on the day. These are my full reasons in detail and in the event of any conflict between these reasons and those real reasons, these take precedent.[18]I have noted above the very brief nature of the claimant's witness statement. I was concerned by the brevity of the witness statement that she had produced, which was surprising particularly in light of the issues raised by Employment Judge MillerVarey in her Judgment which had made clear that the claimant's prospects of succeeding in her claim were slim and that she had evidential hurdles to overcome. Unfortunately, the claimant appears to have paid no regard to that because there is little or no attempt in the witness statement to address the issues raised by Judge Millar-Vary I did however give her the opportunity to give me further evidence in chief in support of her claim, and where appropriate I have incorporated findings based on that additional evidence in chief in what I have set out below.[19]The claimant started work as a Quality Auditor in April 2018. She was confirmed in post after three months’ probation. On the basis of what she had been told at her interview the claimant understood that her pay would go up at the end of that period. The claimant had an expectation that at the end of the probationary period her pay would go up to the same as others employed in the same work as her, but I was presented with no evidence to enable me to conclude on the balance of probabilities that there was any particular agreement in place between the claimant and the respondent about that. The claimant's pay did increase at the end of her probationary period but unbeknownst to her it appears her pay was not increased to the same level as her colleagues. In July 2019 the claimant received a further increase, but she found out that she had received less than her colleagues and she was being paid less than them. Initially HR declined to review her pay but after the claimant raised it with the factory manager this was rectified, and the claimant's pay was put up so that she was paid the same as others in the same role as her.[20]On 16 July 2020 the claimant contacted Mr Battersby and another manager, Mr Sonmez, to ask for a referral to Occupational Health because she had pain in her foot which she attributed to the safety shoes she had been issued with. It was common ground between the parties that because of the health and safety requirements applying to a food business, employees were required to wear workplace issued safety shoes. The claimant described the shoes she had been issued with as breaking down and she regarded them as inadequate. In light of that she had purchased some alternative safety shoes herself which she wanted to be allowed to wear.[21]The Health and Safety Coordinator replied to that email to tell the claimant that she could arrange an appointment with Occupational Health who would make an assessment for any specialist shoe requirements. In his evidence to the Tribunal Mr Battersby explained that because of hygiene requirements only particular styles of shoe are acceptable within the factory so staff could not simply provide their own safety shoes.[22]The claimant was assessed by Healthwork, an Occupational Health provider, on 23 July 2020 in a telephone consultation. That records that the claimant had been experiencing periodic pain in her foot for some time and that she believed her work shoes were contributing to her pain and discomfort. The consultation notes that the claimant had purchased her own shoes, but that she was not allowed to wear those as they had to be approved by Health and Safety. The consultation also records that the claimant had not felt the need to consult her GP, but that she had spoken to someone who was a podiatrist who had recommended insoles. However, these had not helped.[23]The Occupational Health advisor suggested that Health and Safety assess the claimant’s own shoes with a view to her being able to wear those and a recommendation was made to allowing microbreaks for her to rest her foot during any periods of flare-up. The Occupational Health adviser concluded by assessing that the claimant as fit for work and without recommending any particular review in the future.[24]In August 2020 the claimant contacted Mr Battersby again to inform him that she had made a doctor’s appointment because she had developed a lump on the side of her foot, and she was now in some pain and having to take painkillers. The email attached a photograph, although that was not included in the bundle of documents before me. Mr Battersby told me he could not record seeing that although it would appear from the respondent’s documents that it had been sent.[25]The respondent did have an alternative solution in terms of footwear. Unfortunately, however, the claimant has small feet and takes a size 3.5. The alternative shoes which the respondent routinely offered to employees experiencing difficulties do not come in half sizes. Mr Battersby contacted the claimant after initially trying to order the shoes in the correct size, and on 2 September he emailed the claimant to explain and asking her if she was happy to try a size 4, which the claimant says she was happy to do.[26]The claimant heard nothing and on 14 September she chased Mr Battersby to find out if there was any news. Unfortunately, it appears there had been a mix up with the supplier, but Mr Battersby informed her that the shoes had been reordered on 16 September 2020. The shoes arrived in late September and the claimant tried them on. Unfortunately, the shoes provided were much too big. The claimant emailed again and requested that a size 3 was tried.[27]It appears that this email was overlooked. There also appears to have been a certain amount of confusion because when the claimant queried matters she was offered the same shoes to try again.[28]Mr Battersby accepted that there had been something of an oversight in this regard. He explained that this was a difficult time at the respondent. These events were happening in October 2020 during the first autumn after the COVID pandemic. The respondent was continuing its operations but there were significant workplace restrictions in place and I accept that at that time the Health and Safety Department will have had a number of competing demands and requirements.[29]By later October 2020 the claimant was feeling very frustrated. However, although the claimant had emailed about the replacement shoes she did not inform Mr Battersby that she was suffering any particular harm, notwithstanding the reference she had made to seeing her doctor, and I find that in the circumstances Mr Battersby will have been aware that there was an issue in relation to the claimant's shoes which needed addressing, but he had no reason to understand that to have any particular urgency.[30]The claimant spoke to her manager, Mr Jan Sonmez, about this, and he told her to wear the ones that she had already purchased. In evidence the claimant said that she decided not to wear those shoes because she was concerned about getting into trouble, but it appears she made no further attempts to contact Mr Battersby about the issue or raise any other concerns with the respondent. Mr Battersby told me that Mr Somnez should not have given that advice but that if he had known he would not have taken any action against the claimant if she was acting with manager’s approval. There is no evidence from the claimant raised any further issues either with Mr Somnez or anyone else, for example HR, about the issue with her shoes.[31]It appears that the claimant does now have significant problems with her foot but the evidence she referred to about that is the situation now. I was not shown evidence that those issues were foreseeable either by the claimant or the respondent at the relevant time.[32]In November 2020 the claimant was issued with a new contract of employment. Unfortunately, there was an error in that document. Mr Coar explained that the respondent had gone through a process of issuing new terms and conditions to staff. When the claimant had begun her employment in April 2018 she had been issued with a statement of particulars summarising her main terms and conditions of employment. That document, which she signed on 30 April 2018, referred to her having a notice period of three months. She was also provided with a more detailed statement of employment particulars and that document refers to the claimant being required to give, and entitled to receive, one month’s notice of termination. It appears that this discrepancy had never been identified by either the parties of the time. When HR came to reissue the contracts of employment in 2020 Mr Coar had seen the short summary of terms and conditions and understood from that that the claimant was required to give and entitled to receive three months’ notice, and he prepared a new contract of employment for her on that basis.[33]The claimant discovered that she was being required to give longer notice than other employees and was disgruntled about that. She said that she asked Mr Somnez and did not know why that was case. However, the claimant did not query matters with HR nor does she suggest she was put under pressure to sign the new terms and given any sort of ultimatum.[34]Despite this the claimant says that regarded this as the final straw. She says that she asked her manager why her notice period had changed but she was not given any reply. The claimant gave her one month’s notice to terminate her contract of employment on 23 November 2020. That letter gives no reason for resignation. That was accepted by the respondent with no suggestion that she should give longer notice.[35]In February 2021 the claimant wrote to the respondent. That letter is headed without prejudice save as to costs and subject to contract. The respondent argued however that the document does not fall within the scope of the without prejudice rule. It contains no meaningful offer of settlement. The claimant told me that she obtained the letter from an advisor but that she had not suggested any settlement terms because she didn’t know what to suggest. It appears in essence she hoped this would prompt the respondent to negotiate with her. She did not object to the respondent’s submissions and did not object to the letter being considered in evidence.[36]I accepted the letter into evidence. It expresses that the claimant is unhappy and is willing to settle her claim, but it does not contain an offer that the respondent could accept. It is really a statement of grievance. Accordingly I do not find that it was a without prejudice offer of settlement at all.[37]That letter refers to a number of matters which the claimant is unhappy about. She refers to the salary discrepancy at the start of her employment and the issue with the notice period in her contract but there is no mention of the problem with the work shoes. This strongly suggests that when the claimant resigned in and even some three months later, the provision of the safety shoes were not the reason for her resignation. Submissions[38]I heard very brief submissions in this case. I do not seek to set those in detail in here. In summary Mr Warnes invited me to find that, on the fact there had simply been no breach of contract. In large part as the discussion below explains, I agreed with him. The claimant was a litigant in person and she did not make any legal submissions but reiterated that she felt she had been treated very badly. Discussion and Conclusion[39]Turning first to the first breach of contract which the claimant alleges in this case, that related to the fact that she had been paid less than her colleagues at the start of her employment and then had received less than them by way of a pay rise in July 2019. Turning to the terms of the claimant's contract of employment, there is nothing in the written terms of the contract which refers to the claimant as being entitled to any particular rate of pay by reference to a particular job description or scale. There is simply reference to a particular salary. The claimant does not suggest that she was not paid the salary referred to in that written contract.[40]It is perhaps understandable that the claimant had an expectation that she would receive the same pay as her colleagues, but there is no evidence before me that there was an agreement between the parties that this would be the case. I do not accept that it is part of the implied term of trust and confidence that an employee is entitled to the same pay as colleagues if they are undertaking the same work. If that were the case there would be no need for the equal pay provisions within the Equality Act 2010 and the earlier legislation putting in place mechanisms for women to claim equal pay with male colleagues. If the law operated the way the claimant appears to suggest that it does, such individuals would simply be able to bring a claim in breach of contract pointing to the fact that other colleagues were being more for the same work.[41]I find that the claimant had no contractual entitlement to a higher rate of pay or the same rate as her colleagues and she had no right to a payment of any particular arears. That was not a breach of contract.[42]Even if I am wrong about that, after the claimant raised the matter after the rise in July 2019 it was resolved and she seemed content with that. If there was a breach of contract, the claimant subsequently affirmed the breach by working without objection and accepting the payment she received at the time.[43]In relation to the work shoes, it was clearly unfortunate that the shoes given to the claimant were defective or did not fit her well. The respondent did seek to find a solution for her problems by ordering the alternative shoes, albeit there appears to be have been a series of mistakes and errors in connection with how this was handled. I can see that that process could have been undertaken more quickly and it is clear that there was something of a breakdown in communications during what was undoubtedly a difficult time, but I do not find the failures by the respondent were such that there was a significant or fundamental breach of the claimant's contract of employment.[44]Significantly, when the claimant lost patience with waiting for the new shoes and she spoke to her manager he told her that she could wear the ones that she had brought in, even though that would not usually be in line with the company’s health and safety policy. The claimant said that she did not do that because she thought that she would get into trouble, but I did not find that explanation to be credible. There is no suggestion that she told Mr Sonmez that she was not satisfied with this outcome. Her manager had offered a solution to the problem she had with the shoes and she would be entitled to rely on her manager’s advice. If she had genuinely been concerned about the risk of getting into trouble with other managers, she could have asked him to confirm it in writing. No employer acting reasonably could criticise an employee for doing something which had been authorised by their line manager, and indeed that was confirmed by Mr Battersby in his evidence. It is clear he did not approve of the steps which Mr Sonmez took in this regard, but he accepted he could not have criticised the claimant in the circumstances.[45]In her evidence before me the claimant made much of the fact that she says she now has serious problems with her feet. I have no reason to doubt that what she says about that is true, but it is significant that the claimant did not present medical evidence at the time of the difficulties that she was having. She was not reporting sick, and she did not produce any evidence from her doctor to the company. Whilst it is clearly unfortunate that the claimant has experienced pain, I have no evidence before me to suggest that the company was aware of that at the time and disregarded this. It seems likely to me that the claimant is judging what happened in terms of the pain she is experiencing now, rather than what the situation she was in at the time. Part of my reason for reaching that conclusion is her failure to mention the issue of her shoes or any issues with pain and harm in either her letter of resignation or in the February 2021 letter. To be clear I accept that a failure to provide the correct shoes could have been a breach of the implied duty of trust and confidence and how this was handled does not reflect on well on the company’s health and safety department. However, I do not accept that the claimant has shown there was serious or significant breach of contract by the employer or indeed that it was the reason why she dismissed.[46]Finally, in relation to the contract which was issued to the claimant, I accept the claimant's case that as far as she was concerned she was required to give and entitled to receive one month’s notice on the commencement of her employment, and that was what was agreed, despite the other document which refers to three months’ notice. I also accept however that the position in the documents in the personnel file was ambiguous and suggested something else and that Mr Coar made a genuine mistake when he issued the wrong contractual term to the claimant. What is more significant to the term of trust and confidence, is that the respondent did no more than send the claimant a new contract to sign. She does not suggest that at any time she was subject to any pressure at all to sign that new contract, she was threatened with dismissal if she didn’t sign it. I accept the evidence of Mr Coar that if she had raised the issue she would simply have been issued with a new contract of employment showing one month’s notice of termination. This was an entirely innocuous and the claimant had no reasonably basis to believe that it went to the heart of the employment relationship. There was no breach of contract in this regard nor any actionable “last straw”.[47]In relation to the reason for dismissal the claimant now refers to all three matters as being the reason for her resignation. As already noted, the evidence of the claimant in relation to the significance of the shoes was somewhat contradictory. She says it was part of the reason why she resigned, but she also said that “it wasn’t because of this”. I have concluded on the evidence before me that it was a not fundamental breach which went to the heart of the employment relationship, but in any event I am also satisfied that the issue of the shoes was not a material reason for the claimant’s resignation.[48]What prompted the claimant to resign was an innocuous act by the respondent. A last straw need not be a breach of contract in itself but it must contribute something to the breach of trust and confidence. The offer of new contract with the wrong termination provision did not objectively contribute anything to the breakdown of trust and confidence. I find that the conduct of the respondent in this case in relation to the individual matters and cumulatively falls some way short of conduct which would be sufficient to breach the employment relationship and justify the claimant resigning and claiming constructive dismissal. In the circumstances I concluded that the claimant had not been constructively dismissed. Payment of the deposit to the respondent[49]The respondent made an application on the basis of my oral findings for the payment of the deposit ordered by Employment Judge Miller-Varey to the claimant.[50]Rule 39(5) “If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a)the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b)the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded”.[51]I am satisfied that the reasons why I did not uphold the claimant’s claim are substantially the same as Employment Miller-Varey’s reasons for making the deposit order. She identified that claimant faced both evidential and legal burdens with the last straw event and noted that it seemed that the claimant’s prospects for proving that the respondent’s conduct was not “entirely innocuous” were slim.[52]Despite that warning the claimant offered no additional evidence to seek to overcome those evidential burdens and I have indeed found that the respondent’s conduct was innocuous. The claimant also failed to address the evidential burdens identified in relation to the daily since the first alleged breach nor seek to show what the reason for her resignation was.[53]In the circumstances I find that the claimant acted unreasonably in pursuing her claim for constructive unfair dismissal and in those circumstances the deposit should be paid to the respondent in this case.
Findings of Fact
[1]Although the claimant did not expressly make a reconsideration request in accordance with the Rules of Procedure, that is how I have treated her email of 7 December 2022. That, in essence, sets out a number of reasons why the claimant says my judgment about her claim was wrong.[2]The claimant failed to copy her email to the respondent in accordance with rule 71 and that failure was corrected by the Tribunal. Following that the respondent has provided some initial comments on the application.[3]The claimant asserts a number of grounds why she believes that my judgment should be reconsidered. Her email is not numbered so I cannot easily cross reference this to her application, but her grounds can be summarised as follows:a. That she was disadvantaged for the final hearing by the late preparation of the bundle by the respondent and it appears that the claimant expected the response to be struck out in consequence and she only prepared a short witness statement because she did not expect the case to go ahead;b. The claimant is unhappy with what I have said about the pain she says she suffered as a result of ill-fitting shoes;c. She disagrees with my findings about a new contract she had been issued;d. A letter which was headed “without prejudice” was admitted into evidence on the application of the respondent who had argued it was not in fact without prejudice. At the hearing the claimant did not object to its admission and I found it did not in fact contain an offer of settlement any event. The claimant acknowledges that “she was happy for this letter to be seen” but has sent in the reply from the respondent to that letter which I had not previously seen;e. The claimant disagrees with findings I made about pay;f. The claimant asserts that trust and confidence had broken down in the respondent;g. The claimant disagrees with the deposit she had been ordered to pay by Judge Miller-Varey being paid the respondent and says the deposit should have paid to the Tribunal.h. The claimant has also submitted a large number of additional documents, both attached to this email and subsequently. I note however that none of this is referred to as new evidence which was not available at the time of the final hearing on 11 October 2022.[4]In relation to the first matter, the respondent’s non-compliance and the failure by the tribunal to strike out the response, the position is as follows.[5]First I am not aware of any express strike out application and having checked the tribunal file, we appear to have no record of an outstanding application. However, I was aware at the outset of the hearing that the claimant was unhappy about the respondent’s late preparation for the hearing. Mr Warnes offered an explanation for what had happened, but I had some sympathy for the claimant as a litigant in person about this. At the outset of the hearing, I made clear to the claimant that I would be sympathetic if she wanted to make an application to adjourn the hearing but warned her that this would result in a significant delay for the final hearing because of the number of outstanding cases in Manchester. Ms Horrocks told me she wanted to get on with the hearing and we proceeded on that basis.[6]Even if the response had been struck out and the respondent had not attended the hearing at all, the claimant would have had to show, on the balance of probabilities, that she had been constructively dismissed for judgment to have been made in her favour. She did not do that.[7]At the start of the final hearing, I was concerned by the length of the claimant’s witness statement. Judge Miller-Varey’s judgment on strike out and her deposit orders explains in some detail what the claimant is required to show to succeed in a claim of constructive dismissal. She had made a deposit because she found the claimant had little reasonable prosect of establishing that she had been dismissed at the preliminary hearing. Despite the time taken by Judge Miller-Varey in that regard, the claimant appeared to have no regard to what she would have to show given her very brief (less than 1 page) witness statement. In light of that, and nothiwthstanding the potential prejudice to the respondent, because the claimant was a litigant in person and I was aware she felt disadvantaged by the respondent’s late preparation, I allowed the claimant to explain her case to me orally and to provide additional evidence of her claim. My findings of fact took that evidence into account. Further she had the benefit of Judge Miller-Varey’s detailed explanation of what she was required to show at the final hearing. It is unfortunate if the claimant now feels there was more that she could have said either orally or in her statement but the hearing was her opportunity to be heard and this is not a ground to reconsider the decision.[8]Points (b), (c) (e) and (f) above are matters where the claimant disagrees with my findings of fact. I understand that she does not accept the conclusions I reached but I did so on the basis of the evidence before me and on the balance of probabilities. I had to decide whose evidence I preferred. My written reasons explain why I reached the conclusions that I did and why I did not consider that these were matters which amounted to a fundamental breach of contract. It is unnecessary to repeat them here. In any event the claimant has not appear to suggest that I was wrong in how I applied the law, simply that she does not accept that I am right. It is perhaps inevitable in any litigation that one party is dissatisfied with the outcome, but that is not a reason to relitigate the matter.[9]In relation to the issue of “without prejudice” letter I accepted the respondent’s submissions that in fact this was not a document covered by without prejudice privilege and the claimant herself acknowledges that “she was happy for the letter to be seen”. At the hearing she did not object to the respondent’s application to admit that document, but she appears to suggest that I should have looked at another document. The point that I make below about the inclusion of additional documents more widely also applies to that document.[10]The claimant has also submitted a large number of additional documents with her application. The claimant has not suggested that any of these are documents which she did not have access to before the hearing. I took my decision at the final hearing based on the evidence before me. There is an underlying public policy principle in all proceedings of a judicial nature that there should be finality in litigation. Accordingly, it is only in the interests of justice to reconsider a judgment in limited circumstances. Reconsiderations are a limited exceptions to the general rule that employment tribunal decisions should not be reopened and relitigated. It is not a method by which a disappointed party to proceedings can get a “second bite of the cherry”. In Stevenson v Golden Wonder Ltd 1977 IRLR 474, EAT, (in relation to the review provisions under a previous version of the Tribunal Rules) Lord McDonald said the (old) review provisions were ‘not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before’. I consider the same principle to apply to reconsideration in the interests of justice under Rule 70 and therefore it is inappropriate for me to reconsider my judgment simply because the claimant thinks my decision would have been different if she had produced these documents at the final hearing. I have not looked at them.[11]Finally the claimant suggests that the deposit should not have been made to the respondent. My judgment explains why the deposit was paid the respondent. I found against the claimant for the same reasons that Judge Miller Varey ordered the deposit to be made. In those circumstances the deposit is payable to the respondent under the Employment Tribunal Rules of Procedure. I have no discretion about that and there is no provision for me to determine that the deposit should be kept by the Tribunal. That submission is misconceived.[12]For the reasons set out above it is not therefore in the interests of justice that the original decision be varied or revoked and there is no prospect of the application succeeding.