G Pearson v For Everyone Group Ltd and OEM Appliances Ltd: 2402747/2024
EMPLOYMENT TRIBUNALS
Case No 2402747/2024
Between
G PearsonClaimant1. For Everyone Group Limited 2. OEM Appliances Limited PRELIMINARY HEARINGRespondent
Before
Employment Judge BattenE Ebrahimi (instructed by Solicitor) for claimantA Lewis (instructed by Solicitor) for respondentDate 28 November 2024
JUDGMENT
By consent, the first respondent, For Everyone Group Limited, is dismissed from these proceedings, it having been agreed between the parties that the second respondent was the claimant’s employer at the material time.
REASONS
There is no reasonable prospect of the original decision being varied or revoked, because:[1]I have considered the claimant’s application for reconsideration of the Judgment. The application was emailed by the claimant and received by the Tribunal on 18 December 2024. It is brief and consists of a contention that, “in light of the validity of the settlement agreement issue raised by the Judge and for completeness, we would ask that the Judgment is reconsidered and the dismissal is stated to be ‘without prejudice to the claimant’s right to pursue a claim of breach of contract in the civil courts’.[2]On 19 December 2024, the respondents sent a lengthy email objecting to the application.[3]I have taken the contents of the claimant’s application and the objections raised by the respondents into account. Case Number 2402747/2024 2 Rules of Procedure[4]Rule 70(2) of the 2024 Rules of Procedure empowers me to refuse the application without convening a reconsideration hearing if I consider there is no reasonable prospect of the original decision being varied or revoked.[5]The test is whether it is necessary in the interests of justice to reconsider the Judgment (rule 68). Broadly, it is not in the interests of justice to allow a party to reopen matters heard and decided, unless there are special circumstances, such as a procedural mishap depriving a party of a chance to put their case or where new evidence comes to light that could not reasonably have been brought to the original hearing and which could have a material bearing on the outcome.[6]Achieving finality in litigation is part of a fair and just adjudication. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714. It has also been the subject of comment from the then President of the Employment Appeal Tribunal in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 (paragraph 34) in the following terms: “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 by 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.”[7]Rule 51 provides that where part of a claim has been withdrawn, the Tribunal shall issue a judgment dismissing it unless the claimant has expressed, at the time of withdrawal, a wish to reserve the right to bring such a further claim against the respondent and the Tribunal is satisfied that there would be legitimate reason for doing so. The application[8]In his claim presented on 8 May 2024, the claimant named 2 respondents to complaints of sex discrimination, notice pay and unpaid expenses. The claim was accompanied by particulars of claim which said, in paragraph 1, that the actual employer of the claimant was unclear and that the 2 respondents had been named so as to protect the claimant’s interests. It Case Number 2402747/2024 3 was stated that the claimant accepted that one of the respondents would be removed from the proceedings once the issue had been clarified.[9]At a case management preliminary hearing on 28 November 2024, before me, the identity of the claimant’s employer was discussed. The claimant’s representative indicated that it was accepted that the second respondent was the claimant’s employer at the material time and so the first respondent should be removed. I understood that the claimant was in effect withdrawing the claim against the first respondent. I therefore explained that I would issue a judgment dismissing the first respondent from the proceedings. I recorded the matter in my case management orders sent to the parties on 5 December 2024, paragraph 5. The judgment dismissing the first respondent was also issued and sent to the parties on 5 December 2024.[10]The claimant has had legal representation throughout these proceedings and at the case management preliminary hearing. At no time, during the preliminary hearing did the claimant’s representative raise any objection to the first respondent being dismissed from the proceedings.[11]It appears that the application is presented in hindsight, seeking to reargue the matter in a different way because the claimant may wish to pursue the first respondent elsewhere for breach of contract, about a disputed settlement agreement. I consider it is not in the interests of justice to reopen this matter or to amend the judgment as requested or at all, having regard to the principle of finality in litigation.[12]Nevertheless, it should be noted that a complaint of breach of contract in the Employment Tribunal can only be brought against a claimant’s employer and for matters arising or outstanding on the termination of employment – see the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994, section 4(c). Therefore, the Tribunal did not have jurisdiction for the claimant to pursue the first respondent, which was not his employer, in the Tribunal for breach of contract in relation to a matter arising after his employment had ended.[13]In addition, the allegation of breach of contract pursued in these proceedings is pleaded as being one of wrongful dismissal, for notice pay and unpaid expenses. A claim of breach of contract alleging breach of a settlement agreement is not so pleaded and in any event falls outside of the Tribunal’s jurisdiction. The respondents make the point in their objections that there is, on their view, no binding settlement agreement between the parties and that, if there was, it would affect and nullify the Tribunal’s jurisdiction to hear these proceedings. No such settlement agreement has been produced by either party. Case Number 2402747/2024 4
Conclusion
[14]Having considered the claimant’s application and the points made by the respondent, I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The application for reconsideration is refused.