Mr F Sair v Salford Royal NHS Foundation Trust: 2402874/2021
EMPLOYMENT TRIBUNALS
Case No 2402874/2021
Between
Mr F SairClaimantSalford Royal NHS Foundation TrustRespondent
Before
Employment Judge SlaterIn person for claimantMr A Gibson (instructed by solicitor) for respondentDate 11 October 2023
JUDGMENT
[1]The Tribunal has jurisdiction to consider the complaint of victimisation.[2]The issue of whether the Tribunal has jurisdiction to consider the complaints of harassment will be considered at the final hearing.[3]The respondent conceded that the claimant was a contract worker for the purposes of section 41 Equality Act 2010 whose services were supplied to the respondent (the principal).
REASONS
[1]I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment dismissing his claims. That application is contained in a six-page document attached to an email dated 14 October 2023.
The Law
[2]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[3]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[4]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”[5]Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: Case No: 2402874/2021 “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.”[6]In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. The Application[7]The claimant’s application does not set out grounds for reconsidering the Judgment. Mostly, it comprises a version of the statement which the claimant read out by way of closing submissions at the conclusion of the Hearing.[8]In terms of the five numbered paragraphs at the start of the application, the claimant is simply trying to re-open issues of fact on which the Tribunal heard evidence from both sides and made a determination. Those points represent an attempted “second bite at the cherry” which undermines the principle of finality. Such attempts have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing. A Tribunal will not reconsider a finding of fact just because the claimant wishes it had gone in his favour.[9]There is nothing in the application which indicates that the Tribunal has missed something important, or that there is new evidence available which could not reasonably have been put forward at the hearing.
Conclusion
[10]Having considered all the points made by the claimant I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The points of significance were considered and addressed at the hearing. The application for reconsideration is refused. Employment Judge Dunlop DATE: 2 November 2023 Case No: 2402874/2021