Mr R Mehmood v Worldwide Foods (Rochdale) Ltd: 2411035/2018
EMPLOYMENT TRIBUNALS
Case No 2411035/2018
Between
Mr R MehmoodClaimantWorldwide Foods (Rochdale) LtdRespondent
Before
Employment Judge FraneyDate 11 April 2019
JUDGMENT
The unanimous judgment of the Tribunal is as follows:[1]The employer’s contract claim is dismissed upon withdrawal by the respondent.[2]By consent the respondent made an unlawful deduction from the claimant’s wages for 26-29 March 2018 and is ordered to pay the claimant the gross sum of £250.56 unlawfully deducted from his pay.[3]The complaint of breach of contract in relation to notice pay succeeds and the respondent is ordered to pay the claimant the net sum of £1,257.54 as compensation for breach of contract.[4]The complaint of direct discrimination because of religious belief fails and is dismissed.[5]The complaint of direct discrimination because of race succeeds in relation to failure to provide a written contract of employment, failure to pay for overtime and holiday pay, and failure to pay the claimant on time each week. The total award is as follows: Case No. 2411035/2018 2 Injury to feelings £12,000.00 Interest thereon £1,920.00 Financial losses £3,738.83 Interest thereon £299.11 Total £17,957.94[6]The unfair dismissal complaint is well founded. The claimant was unfairly dismissed. The respondent is ordered to pay the claimant the total sum of £8,401.53 made up of a basic award of £2,192.40 and a compensatory award of £6,209.13 calculated as follows: Loss of statutory rights £400.00 Loss of earnings £5,051.42 ACAS uplift 15% £757.71 Total £6,209.13[7]These awards are increased by four weeks’ pay in the sum of £1,096.20 for failure to provide a written statement of the main terms of employment.[8]The recoupment regulations do not apply.[9]The total amount awarded by this judgment is £30,708.56.
REASONS
[1]I have undertaken preliminary consideration of the respondent's application for reconsideration of certain aspects of the judgment. That application is contained in a letter of 13 May 2019. I have also considered comments from the claimant dated 28 June 2019. No written reasons for the judgment have been requested but from my notes of the hearing I have refreshed my memory of the oral reasons given. A recording of those oral reasons remains available but I have not found it necessary to listen to it.
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 Case No: 2411035/2018 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: “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]Finally, 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]There are two points upon which reconsideration is sought. No Reduction to Compensatory Award[8]The respondent says that the conclusion that there should be no reduction in unfair dismissal compensation pursuant to Polkey v AE Dayton Services Ltd [1987] UKHL 8 should be reconsidered as the claimant said in evidence that during the discussion in which we found he was dismissed, he had threatened to leave a week later in any event.[9]This point was addressed in submissions. The claimant’s representative invited us to conclude that the claimant was only putting pressure on the respondent by saying that, and that he would not have resigned had he not been dismissed. We did not accept that argument entirely, although we were satisfied that he would have waited until he had another job before resigning. More importantly, however, the Tribunal found that any such resignation would have been an unfair constructive dismissal in any event because the claimant was being treated in a way which we found was race discrimination. It would not be just and equitable to limit the compensatory award because of a possible subsequent resignation which would itself have been an unfair constructive dismissal.[10]We also rejected the respondent’s argument that the claimant would have been fairly dismissed for taking breaks or behaving abusively.[11]The Polkey arguments were raised and addressed during the hearing and there is no reasonable prospect of the respondent establishing that it would be in the interests of justice to reopen them. Case No: 2411035/2018 Injury to Feelings Award[12]The Tribunal made an award of £12,000 for injury to feelings following our finding that there had been direct race discrimination in the failure to give the claimant a written contract of employment, the failure to pay him for overtime and holiday pay, and the failure to ensure that he was paid on time each week.[13]The respondent now raises again its argument that the award should have been in the lowest band under Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871. It reiterates arguments raised at the hearing about whether the circumstances of the non-Pakistani comparators were genuinely comparable. Although presented as an issue about quantum it is in truth an attack on most of the Tribunal’s findings on race discrimination.[14]Nothing raised in the reconsideration application is new. The same points were raised during the hearing. We explained in our oral reasons why they were rejected. It would not be in the interests of justice to reopen the matter and let the respondent have a second bite at the cherry.
Conclusion
[15]Having considered all the points made by the respondent I am satisfied that there is no reasonable prospect of the Tribunal’s original decision being varied or revoked. The points raised were considered and addressed at the hearing. The application for reconsideration is refused. _____________________________ Employment Judge Franey 3 July 2019