Mr S Brown v R C Ayres Building and Roofing Services Ltd: 2500098/2018

EMPLOYMENT TRIBUNALS

Case No 2500098/2018

Between

Mr S BrownClaimant

R C Ayres Building and Roofing Services LtdRespondent

Before

Employment Judge Arullendran

Date 27 July 2018

JUDGMENT

The judgment of the Employment Tribunal is as follows:-

[1]The correct title of the respondent is R C Ayres Building and Roofing Services Limited and the Employment Tribunal record is amended accordingly, with service deemed to have been effected. The claimant’s claim for unfair dismissal is not well-founded and is dismissed.

REASONS

[1]The hearing began with a dispute between the parties about the production of a joint bundle of documents and the exchange of witness statements. The claimant is represented by Mr McDonald who is a retired HR Manager and he has attended the Tribunal with his own bundle of documents which amounts to a loose-leaf collection of papers. The respondent says that Mr McDonald attended the offices of the respondent’s solicitors on two occasions and was offered the opportunity to obtain copies of the respondent’s documents, which Mr McDonald declined. Mr McDonald has seen the CCTV footage at the respondent’s solicitor’s offices which was the subject of the claimant’s dismissal. After much debate, I asked Mr McDonald to tell me which of the claimant’s documents were missing from the respondent’s bundle so that I could take those documents from his papers and insert them into the respondent’s bundle for use during the hearing. Mr McDonald said he would let me know if there were such documents, but he did not indicate throughout the rest of the hearing that there were any documents which he wanted to rely on which were not already in the respondent’s bundle. Therefore, I returned the claimant’s documents to Mr McDonald and the hearing was conducted on the basis of the bundle as produced by the respondent. Two extra documents from the respondent were added to the Tribunal bundle at pages 129 and 130, with the consent of the claimant, which are the claimant’s statement and that of his supervisor which were used in the disciplinary hearing.

[2]The parties had not exchanged witness statements in accordance with the Order from the Employment Tribunal, however I note that neither party had written to the Tribunal about the failure to exchange witness statements, or the production of the bundle. Mr Robson indicated that he had e-mailed a copy of the respondent’s witness statements to Mr McDonald last week, however Mr McDonald said that he did not open his e-mails until Monday (14 May) of this week and had not read the witness statements prior to attending the hearing today (15 May 2018), even though he had access to the e-mail enclosing the witness statements yesterday and over the weekend. I advised Mr McDonald that it was a matter for him and the claimant as to how they prepared for the case today, however I could not allow any further time for Mr McDonald to prepare his case as I had already spent one hour and ten minutes dealing with the issues relating to documents, statements and remedy which the claimant had not addressed his mind to in readiness for the hearing. There were breaks throughout the hearing which Mr McDonald could use to read the statements, such as the reading time and lunch break. An extra break was given prior to closing submissions to allow Mr McDonald to gather his thoughts and address the list of legal issues agreed at the beginning of the hearing.

[3]Prior to hearing the evidence and approximately 50 minutes into the hearing, the claimant indicated to the Tribunal that his mother had written his witness statement because he has dyslexia, however this matter had not been brought to the attention of the Employment Tribunal prior to the hearing despite the requirement for the parties to inform the Tribunal of any disabilities or communication difficulties, as set out on page 2 of the Notice of Hearing dated 23 January 2018. In the circumstances, it was agreed that the representatives for the claimant and the respondent would read out any documents which the claimant was required to consider as part of his evidence and this was done throughout the hearing. This process necessarily slowed down the giving of evidence, but, with the assistance of both sides, we were able to conclude the evidence and closing submissions in one day. However, it was not possible to give the judgment at the end of the hearing and it necessitated the decision to be reserved.

[4]After the commencement of the hearing, Mr McDonald indicated to the Tribunal that he was partially deaf and I note that this was not brought to the attention of the Employment Tribunal prior to the hearing. Mr McDonald indicated that he did not wear a hearing aid and therefore I concluded that the hearing induction loop would be of no assistance. Had this matter been brought to the attention of the Employment Tribunal prior to the hearing, it may have been possible to list the hearing at North Shields Hearing Centre where the hearing rooms are much smaller and the ceilings are lower, however it was not possible to find an alternative hearing room at Teesside Magistrates once this hearing and the other hearings in the building had commenced. In accordance with the overriding objective, reasonable adjustments were made to assist Mr McDonald in that information was repeated to him several times at various points throughout the hearing and I dictated the list of issues to Mr McDonald on two separate occasions, after he lost the first copy.

[5]I heard witness evidence from the claimant, James Hall, Contracts Manager and Alan Ayres, Managing Director. I was provided with a joint bundle of documents consisting of 130 pages.

[6]The issues to be determined by the Employment Tribunal were as follows:-6.1 Did the respondent genuinely believe the claimant to be guilty of gross misconduct?

6.2 Did the respondent have reasonable grounds upon which to sustain that belief?

6.3 At the stage at which that belief was formed on those grounds, had the respondent carried out as much investigation into the matter as was reasonable in the circumstances?

6.4 Was the dismissal procedurally unfair and were any defects in the dismissal procedure cured on appeal?

6.5 If the dismissal was procedurally unfair, what is the chance that the claimant would have been dismissed if the respondent had applied a fair procedure?

6.6 Was dismissal within the range of reasonable responses open to a reasonable employer?

6.7 Did the claimant contribute to his dismissal through culpable or blameworthy conduct and, if so, by how much?

6.8 Was there an unreasonable failure by the respondent to apply the ACAS Code on Disciplinary and Grievance Procedures and, if so, by what percentage should the compensation be adjusted to reflect this?

The facts

[7]These findings of facts have been made on the balance or probabilities on the basis of the witness evidence and documentary evidence placed in front of this Tribunal:-7.1 The claimant began his employment with the respondent on 2 October 2006 and was employed as a Groundsman. The respondent’s correct title is R C Ayres Building and Roofing Services Limited and it employs 30 people who operate from third party client sites. The client was working at Ineos Nitriles (Ineos) which operates in the petrochemical and nuclear power industry. Ineos is licensed to operate under the HSE Control of Major Accidents Hazards (COMAH) Regulations and all the respondent’s employees, including the claimant, who work on such sites are required to comply with the site health and safety requirements as specified by the Regulations, the client and the respondent. All the employees who visit the Ineos site are required to be issued with a site pass upon satisfying Ineos that they have the relevant health and safety qualifications, such as the CCNSG safety passport, which is the minimum petrochemical industry recognised safety training. The claimant was issued with a site pass by Ineos which allowed him to work at this site and to operate his vehicle on Ineos premises.

7.2 In order to satisfy the requisite health and safety requirements in the industry and, in particular at the Ineos site, the respondent provides internal and external training to all its relevant staff, including the claimant. This training follows a CITB annual rolling programme which is delivered on a daily and weekly basis through toolbox talks, site safety audits and offsite training.

7.3 The toolbox talks are delivered on the respondent’s premises each Monday and all the operatives attending the course are required to sign the accompanying registers. Ineos talks are delivered by the respondent upon the information being provided by the client. These talks include information relating to site rules, general health and safety and health and safety incidents.

7.4 The claimant accepts he attended the majority of the toolbox talks, although he has suggested that he was asked by the respondent to sign the attendance sheets when he was actually away on holiday. This is denied by the respondent and Mr Hall and Mr Ayres are adamant that operatives are told never to sign any documents if they do not understand them. I note that the toolbox talk registers in the Tribunal bundle, such as those at pages 103-104 and page 110, have several gaps where there are no signatures which presumably means that the particular workers were not present at the talk. I also note that the claimant is unable to say which toolbox talk register he was asked to sign when he was not in attendance and therefore I prefer the evidence of the respondent that the claimant was not asked to sign for attending talks when he was in fact absent. In any event, there is no dispute between the parties that the claimant attended the toolbox talk on the use of electricity and site rules which can be seen at page 109 of the bundle during which it was said by Mr Hall that “The site rules are mandatory (not open to your opinion) … Just because others break rules doesn’t make it OK … Breaking rules can get you kicked off site and possibly cost you your job … Ineos driving standards have been tightened must be obeyed”.

7.5 On 8 February 2012 the respondent wrote to the claimant seeking the claimant’s agreement to incorporate an additional clause into his contract of employment, as can be seen at pages 31 and 32 of the bundle. The claimant accepted in cross-examination that he had received this letter and signed it but could not recall receiving the amended clause 16.2 as set out at page 32 of the bundle. The claimant’s evidence was that he did not recognise the signature on page 32 as his. The amendment at page 32 reads “Where an employee is alleged to have committed a breach of the employer’s policy and/or procedure and/or is alleged to have breached site rules at the site where the employee is working, the employer may take disciplinary action against the employee, up to and including dismissal, regardless of the rules implemented by that site and in consideration of the commercially sensitive relationship in existence between the employer and site in question”.

7.6 I am satisfied, on the balance of probabilities, that the amended clause at page 32 of the bundle is the document being referred to in the letter the claimant received at page 31 of the bundle because the covering letter refers to the respondent’s commitment to the health and safety of its workers and clients and the commercially sensitive relationship it has with its clients. Therefore I am satisfied that the claimant was aware of this additional clause regarding the disciplinary procedure and he had indicated his acceptance of the clause by signing the covering letter at page 31 and by continuing to work for the respondent from 2012 to the date of his dismissal.

7.7 The respondent’s disciplinary policy can be seen at pages 34-45 of the bundle. At page 41 the procedure states that actions which endanger employees’ safety will amount to gross misconduct, but the list provided in the policy is not exhaustive. At page 43 of the bundle the respondent’s policy provides a list of the do’s and don’ts under the heading of Health and Safety. Under the do list it states “Avoid running or rushing about – it is better to be safe than sorry”.

7.8 A copy of the Ineos site driving standards can be seen at page 66 of the bundle and at page 67 a copy of the Ineos toolbox talk from July 2015 on vehicle safety has been reproduced, along with the register of attendees at page 68, which has been signed by the claimant. The site driving standard states that all road signs must be obeyed on the Ineos site and that stop signs are mandatory, “even if the junction appears clear as it is approached”.

7.9 On 25 October 2017 the claimant was in a hurry to leave the Ineos site because he believed his mother to be very ill. The claimant did not stop at two stop signs on his way to the site exit. The claimant says that the adjoining road was closed at the first stop sign, which is why he did not stop there, and he did not stop at the second stop sign because the exit barrier was raised and he decided to follow the vehicle in front of him, as he says this is common practice. However, the Gatekeeper did not see the claimant and the barrier was lowered onto the back of the claimant’s vehicle which caused damage to the barrier. The claimant then removed the barrier from his vehicle and logged out at the gatehouse and he says he told the Gatekeeper not to worry about it when the Gatekeeper said that he would get into trouble over the incident.

7.10 Mr Hall was informed of the incident on the morning of 26 October 2017 by Richard Barber of Ineos. Mr Hall was informed that Ineos would carry out an investigation into the incident and the claimant would not be allowed to work on the Ineos site that day and that he could not drive on the site until further notice. Mr Hall then asked the claimant to attend the respondent’s offices on 27 October in order to go through his recollection of the incident.

7.11 At the meeting on 27 October 2017 the claimant told Mr Hall that he drove through the barrier in order to avoid the build-up of traffic and that he drove through the stop sign as the barrier had been raised to let another vehicle through. He also said the Gatekeeper thought he would be in trouble and that he had told the Gatekeeper not to worry about it. The claimant was then suspended on full pay and invited to attend a disciplinary hearing on 31 October 2017.

7.12 The letter inviting the claimant to the disciplinary hearing advised the claimant that he could receive a written warning and that he was entitled to be accompanied to the hearing. However, after the letter to the claimant had been posted, Richard Barber of Ineos telephoned Mr Hall and informed him that he had reviewed the CCTV footage and that the incident was a lot more serious than he had originally thought and therefore the Ineos site Director had decided to revoke the claimant’s site pass altogether and would not allow the claimant back onto the site in any capacity.

7.13 Mr Hall held a meeting with the Ineos Health and Safety Department on 30 October 2017 to review their CCTV footage. Ineos would not provide the respondent with a copy of the CCTV footage as they said it belonged to them and they would only release it if required for Court proceedings. Mr Hall reviewed the statements and concluded that the incident was more serious than he originally thought in that the claimant had failed to stop at two stop signs and failed to follow the correct signing out procedure at the gatehouse, which are mandatory site rules. Further, the statement from the Gatekeeper said the claimant had told him “He wouldn’t say anything if he didn’t” and the CCTV footage shows the claimant tampering with the scene of the incident by pulling the barrier straight, but the rules state that incidents must be left alone and immediately reported to allow a full investigation to take place. Mr Hall also found that the statement from the claimant’s Site Supervisor says that the claimant did not report the incident to him and that he had only pointed to the barrier saying it was not his fault (page 47 of the bundle). Mr Hall further found that the claimant had not reported the incident to the Ineos Shift Manager.

7.14 The claimant attended a disciplinary hearing on 31 October 2017 and Mr Hall informed the claimant at the beginning of that hearing that the incident was more serious than the respondent had first thought and that it could be classed as gross misconduct and could lead to the claimant’s dismissal. Mr Hall then took the claimant through his recollection of events and he told the claimant what had been recorded on the CCTV footage. The minutes of the disciplinary hearing are at page 48 of the bundle and they reflect that the claimant was told by Mr Hall that his recollection of events matched the CCTV footage and the only disagreement was that the claimant said he did not say to the Gatekeeper “I won’t say anything if you don’t”. The notes also reflect that the claimant admitted that he had not followed the procedures correctly and that he was sorry about it. At the end of the hearing Mr hall reiterated the seriousness of the offence and that he could lose his job but that the evidence would be evaluated before reaching a conclusion.

7.15 The respondent wrote to the claimant on 2 November 2017, which can be seen at pages 49-50 of the bundle, terminating the claimant’s employment summarily as of 3 November 2017 for gross misconduct for failing to observe the mandatory site rules, such as not stopping at stop signs and not swiping out of the gatehouse before passing through the barrier which resulted in damage to the barrier on the Ineos site. The respondent offered to pay to the claimant 50% of his 11 weeks’ notice as a gesture of goodwill to reflect his honesty during the investigation. The letter of dismissal is signed by Alan Ayres but Mr Hall told the Employment Tribunal that he had written the dismissal letter himself, that it had not been written by Mr Ayres, but Mr Hall had decided to put Mr Ayres’ name on it because he is the Managing Director.

7.16 The claimant appealed against his dismissal to Mr Ayres. The letter of appeal can be seen at page 51 of the bundle and is dated 9 November 2017. The claimant says in his letter that the Gatekeeper should have seen his vehicle before he lowered the barrier and it is a regular practice for drivers to drive through the barrier and then carry out the booking out procedure at the gatehouse.

7.17 The claimant attended an appeal hearing on 15 November 2017 chaired by Mr Ayres and he was accompanied by Donald McDonald, who is a retired HR Manager. The minutes from the appeal hearing can be seen at pages 53-54 of the bundle.

7.18 Mr McDonald said at the appeal hearing that the respondent’s handbook required employees to “drive carefully” and that this did not require them to stop at stop signs and that the claimant was just following the example of other operatives. He also said that the Gatekeeper was equally responsible for the incident and the decision to dismiss the claimant was harsh given his 11 years clean employment record. Mr McDonald also registered his surprise at the offer of an ex gratia payment from the respondent and said he had never come across such an offer before. The claimant asked if he could be given work at another site as Mr Ayres had indicated to him that Ineos would not permit the claimant to work at their site again. Mr Ayres asked the claimant if he had any new evidence to present, but the claimant did not have any new evidence to present to the appeal hearing and he accepted that he had not followed the rules on the Ineos site, however he argued that his punishment was harsh as his actions were not deliberate.

7.19 The respondent wrote to the claimant on 22 November 2017 upholding the original dismissal for gross misconduct and this can be seen at page 55 of the bundle. The dismissal was upheld on the grounds that the claimant admitted to not following the site rules, which were mandatory, and causing damage to Ineos property. The respondent told the Tribunal that they could not employ the claimant elsewhere because they had lost trust and confidence in him and they did not find that it was common practice for operatives to drive through the barrier prior to completing the logging out procedures.

The law

[8]EMPLOYMENT RIGHTS ACT 1996 98 General (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)--(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

[9]I refer myself to the leading case of British Home Stores Limited v Burchell

[1980] ICR 303

in which it was held that there is a threefold test to be applied in misconduct dismissal cases. The questions to be asked by the Employment Tribunal are as follows:-9.1 Did the respondent genuinely believe the claimant to be guilty of gross misconduct?

9.2 Did the respondent have reasonable grounds upon which to sustain that belief?

9.3 At the stage at which that belief was formed on those grounds, had the respondent carried out as much investigation into the matter as was reasonable in the circumstances? I note that, provided the employer has a reasonable belief that the employee was guilty of misconduct, it is generally irrelevant that the employee did not consider the behaviour inappropriate.

[10]I note that, in workplaces with significant health and safety risks, a breach of health and safety procedures may be viewed as gross misconduct justifying dismissal, whereas similar breaches in workplaces where workers are not exposed to the same level of risk may warrant only a warning.

[11]I refer myself to the case of Taylor v OCS Group Limited

[2006] ICR 1602

in which the Court of Appeal held that defects in the original disciplinary hearing and pre-dismissal procedures can be remedied on appeal. The Court of Appeal went on to find that where an employee is dismissed for serious misconduct, a Tribunal might well decide that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee.

[12]I refer myself to the case of USDAW v Burns EAT0557/12 in which the Employment Appeal Tribunal noted that section 98(4) of the Employment Rights Act 1996 poses one unitary question which is whether the dismissal was fair or unfair having regard to the reason shown by the employer. Therefore, any procedural unfairness has to be examined in light of this test.

[13]I refer myself to the case of J Sainsbury Plc v Hitt

[2003] ICR 111

in which Lord Justice Mummery observed that the need to apply the objective standards of the reasonable employer applies as much to the question of whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason.

Conclusions

[14]Applying the law to the facts I find that the reason for the claimant’s dismissal was misconduct, which was a potentially fair reason under section 98(2)(b) of the Employment Rights Act 1996. The question for this Tribunal to determine, then, is whether the claimant’s dismissal was fair or unfair depending on whether, in the circumstances, (taking into account the size and administrative resources of the employer’s undertaking) the respondent acted reasonably in treating it as a sufficient reason for dismissing the claimant.

[15]The claimant has not challenged whether the respondent held a genuine belief in the claimant’s guilt at the time of his dismissal and I find the respondent did indeed hold such a belief given that the claimant admitted to the sequence of events which led to the incident on 25 October 2017: failing to stop at two stop signs, causing damage to Ineos property, failing to carry out the correct exit procedures, failing to report the incident to his Line Manager and Site Supervisor and tampering with the incident, thereby placing himself at risk.

[16]I find that the respondent did have reasonable grounds to sustain its belief that the claimant was guilty of gross misconduct as Mr Hall had found that the claimant’s account mirrored the footage from the CCTV of the incident and the claimant admitted the conduct at the investigation and disciplinary hearings.

[17]The respondent relied in part on the investigation carried out by its client, Ineos, and I find that it was reasonable for the respondent to rely on this investigation given that Ineos had ownership of the CCTV footage, which it would not release to the respondent, and the Gatekeeper was not an employee of the respondent. The respondent does not have a dedicated HR Department, or indeed an individual whose job it is to carry out a dedicated HR function as it is a small employer employing 30 staff and outsources its HR function to a third party. Mr Hall has not had any specific training on handling disciplinary and grievance matters, which is an unsatisfactory position for a Manager charged with dealing with such procedures within the workplace, but given the size and administrative resources of the respondent company, I find that the respondent did carry out a reasonable investigation which falls within the range of reasonable investigations open to a reasonable employer at the time it formed its belief of the claimant’s guilt: J Sainsbury Plc v Hitt.

[18]With regard to the dismissal procedure, it is true that the respondent’s invitation letter to the disciplinary hearing outlined the potentially penalty as a final written warning rather than dismissal. I am satisfied that the respondent has given a reasonable explanation as to why it changed its mind about the penalty to that of dismissal on receiving the extra information from its client about the severity of the breaches of the site mandatory rules by the claimant. I asked Mr Hall if he had given any thought to rearranging the disciplinary hearing to give the claimant time to deal with the change to the potential penalty, to which he replied that he had not. The question is, therefore, whether this affected the claimant’s ability to challenge the respondent’s reason for dismissal. In the circumstances, as the claimant already knew why he had been asked to attend a disciplinary hearing and had already admitted to causing the incident, I find that the failure to rearrange the disciplinary hearing to a later date did not affect the claimant’s ability to challenge the respondent’s reason for his dismissal and does not render the dismissal unfair. However, even if I am wrong on this point, I find that this procedural irregularity was cured on appeal as the dismissal was reconsidered in full by Mr Ayres at the appeal hearing where the claimant was represented by Mr McDonald: Taylor v OCS Group Limited. I note that the claimant did not present any new evidence at the appeal hearing and the only things the claimant disputed was the severity of the dismissal and the fact that he did not make the comments to the Gatekeeper, as alleged, but I am conscious of the fact that the claimant was not dismissed for allegedly covering up the incident or colluding with the Gatekeeper, thus I find that this point is of little relevance. Further, the claimant had already raised the issue about what he had said to the Gatekeeper during the investigation and in the disciplinary hearing and, therefore, this was not new evidence as the respondent had already considered it.

[19]As I have found that the disciplinary and appeal procedures were conducted fairly in line with the guidance given in the case of Taylor v OCS Group Limited, there is no requirement for me to make any findings on issue number 6.5, above.

[20]I find that the claimant’s dismissal was within the range of reasonable responses open to a reasonable employer in the circumstances given that the respondent operates in an environment where health and safety rules must be observed as a mandatory requirement. The respondent clearly did take into account the claimant’s length of service and clean disciplinary record and this can be seen in their ex gratia offer of half of the notice pay the claimant would have been entitled to if he had not been summarily dismissed.

[21]In all the circumstances, I find that the claimant’s dismissal was fair in that the respondent acted reasonably, in the circumstances, in treating the claimant’s admitted conduct in the particular work environment, with significant health and safety risks, as a sufficient reason for his dismissal. Therefore, I find that the claimant’s claim for unfair dismissal is not well-founded and it is dismissed.

[22]In light of the above findings, there is no requirement for me to make any findings on issues number 6.7 and 6.8, above. EMPLOYMENT JUDGE ARULLENDRAN

Conclusions

[1]The claimant, who is now represented by his mother, Mrs Christine Brown, submitted an application for a reconsideration of the Judgment promulgated on 24 May 2018, which was received at the Tribunal offices on 12 June 2018. The application for the reconsideration states that it was sent by recorded delivery on 11 June 2017, however, this appears to be a typing error. The application consists of 53 pages.

[2]The main arguments put forward by Mrs Brown in support of the application are the lack of availability of legal advice and representation leading to the inequality of arms, the inability of Mr McDonald to prepare for the Hearing of 15 May 2018 due to his holiday, the unsuitability of the venue given Mr McDonald’s hearing impairment, the inconsistency of the dates and signatures on the tool box talks provided by the respondent, the fact that the gateman and the claimant’s supervisor were not called as witnesses at the Hearing, the claimant’s representative being out of his depth (although it is conceded by Mrs Brown on page 7 of the application that the outcome of the Hearing may have been the same in any event), that the respondent did not ask the claimant’s representative if he wanted copies of any of the respondent’s documents on the three occasions he visited their offices to inspect the documents and watch the CCTV footage, Mrs Brown not being called as a witness, the claimant and his family’s health not being considered, that gross misconduct implies a deliberate act and the allegation that the tool box talk were all verbal and that original documentation was not provided to the employees who attended the talks. Mrs Brown raises further matters at pages 52 and 53 of the application for reconsideration in respect of events which have taken place after the hearing which involve people other than the claimant, however this Tribunal does not have jurisdiction to deal with any of these matters.

[3]The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, provides as follows: “70 A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (‘the original decision’) may be confirmed, varied or revoked. If it is revoked it may be taken again. 71 Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 72(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application.

(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.”

[4]The previous Employment Tribunal Rules (2004) provided a number of grounds on which a Judgment could be reviewed (now called a reconsideration). The only ground in the 2013 rules is that at Judgment can be reconsidered where it is necessary in the interests of justice to do so. However, it was confirmed by Justice Eady in Outasight VB Limited -v- Brown

UKEAT/0253/14/LA

that the guidance given by the Employment Appeal Tribunal in respect of the previous rules is still relevant guidance in respect of the 2013 rules and therefore I have considered the case law arising out to the 2004 rules.

[5]There is a public policy principle that there must finality in litigation and reviews are a limited exception to that principle. In the case of Stevenson -v- Golden Wonder Limited

1977 IRLR 474

it was made clear that a review (now a reconsideration) is not a method by which a disappointed litigant gets a “second bite of the cherry”. Lord McDonald said that the 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 produced which was available before”. The Employment Appeal Tribunal went on to say in the case of Fforde -v- Black EAT68/80 that this ground does not mean “that in every case where a litigant is unsuccessful is automatically entitled to have the Tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in even more exceptional cases where something has gone radically wrong with the procedure involving the denial of natural justice or something of that order.”

[6]“In the interests of justice” means the interest of justice to both sides. The Employment Appeal Tribunal provided further guidance in Reading -v- EMI Leisure Limited EAT 262/81 where it was stated “when you boil down what is said on [the claimant’s] behalf it really comes down to this: that she did not do herself justice at the hearing so justice requires that there should be a second hearing so that she may. Now, “justice”, means justice to both parties. It is not said, and, as we see it, cannot be said that any conduct of the case by the employers here caused [the claimant] not to do herself justice. It was, we are afraid, her own inexperience in the situation.”

[7]The arguments and documents submitted by Mrs Brown have been considered on an ex parte basis without inviting any comments from the respondent, in accordance with Rule 72. Thus, I have taken the claimant’s application at its highest as revealed by the documents sent in by Mrs Brown.

[8]The unavailability of legal aid and therefore legal representation at the Employment Tribunal hearing is not a matter that this Tribunal has any jurisdiction over and it was explained to the claimant and his representative that it was a matter for them how they prepared for the Tribunal hearing. No applications were received by this Tribunal in respect of the failure to disclose documents or for a postponement prior to the substantive hearing. Indeed, no application for an adjournment was made at the hearing itself. Therefore, there does not appear to have been any error on the part of the Tribunal, nor does the application reveal that it is in the interest of justice for the original decision to be reconsidered. Similarly, it may well have been better for the hearing to be listed at a different venue, however the application does not reveal that there would be a reasonable prospect of the original decision being varied or revoked on the basis of the choice of hearing venue.

[9]The claimant may have been disappointed that the gateman and his supervisor were not called as witnesses at the hearing, however, the Tribunal cannot compel a witness to attend and no applications for witness orders were ever received by the Tribunal prior to the hearing. In any event, these witnesses were not called to give evidence at the disciplinary or appeal hearings and they have not indicated what the nature of their evidence might be. As this evidence would have been available at the previous hearing if the witnesses had been called, it cannot be categorised as new evidence which was not available at the time of the hearing and I find that there is no reasonable prospect of the original decision being varied or revoked and, therefore, there are insufficient grounds for a reconsideration on this basis.

[10]Whilst it is unfortunate that Mr McDonald felt out of his depth at the Hearing on 15 May 2018, I note that he never raised that issue at the Hearing and he presented himself as being a HR professional with over 20 years experience. This appears to be a similar argument that which was raised in the cases of Reading -v- EMI Leisure Limited and Stephenson -v- Golden Wonder Limited. Applying the guidance from those cases, the interests of justice do not require the original decision to be reconsidered as the claimant is seeking to relitigate the case with a difference emphasis because Mr McDonald did not do himself justice due to his inexperience and/or lack of preparation, which is not the purpose of the Rules relating to reconsiderations.

[11]I note from the Tribunal record of the hearing of 15 May that Mrs Brown was not called as a witness as there was no dispute between the parties that she had been admitted to hospital on the day the claimant had his accident in the workplace. In such circumstances there is no requirement or reason for calling evidence where the issues are not in dispute between the parties. Similarly, there was no dispute between the parties about the claimant’s family’s health and it was not relevant to the legal issues as set out at the beginning of the hearing of 15 May. In all the circumstances, there is no reasonable prospect of the original decision being varied or revoked on this ground.

[12]The claimant has made much about the respondent allegedly lying to the Employment Tribunal about offering to provide Mr McDonald with copies of its documents when he attended their solicitor’s offices and the alleged altered attendance forms from the Tool Box talks. I note that these are extremely serious allegations to consider in the absence of any comment from the respondent, however, even taken at their highest, I cannot see any grounds for allowing the reconsideration as these are matters that could have been raised at the original hearing and it is not new evidence which has come to light after the hearing concluded. More importantly, the Tool Box talks were not documents which were used by the respondent in the disciplinary or appeal hearings and, therefore, did not form part of the dismissal process. Even if these documents are not what they purport to be, there is no evidence that the CCTV footage and the information used by the respondent to dismiss the claimant was in any way inaccurate or untruthful. The Employment Tribunal does not have jurisdiction to investigate the alleged falsification of records. Even taken at its highest, this ground does not reveal any reasonable prospect of the original decision being varied or revoked.

[13]I note that Mrs Brown has made some errors in her application for reconsideration, such as dating it 2017 instead of 2018 and by placing the Judge’s comments in inverted commas at paragraph 5 of the application, which is entirely incorrect as there was never any prospect of the claimant’s hearing be heard the following day if it was not completed on 15 May. The reality was the hearing would have been listed for weeks or months hence, which could have resulted in an application for costs. Similarly, placing the Judge’s comments in quotes at paragraph 10 of the application is entirely incorrect as the word “frustrating” does not appear anywhere in the Tribunal record, nor was it ever suggested that Mr McDonald see someone. The record reflects that reference was made to it being something to be explored in the context of finding out whether the hearing induction loop would be of assistance because of the difficulties experienced. In any event, there is no suggestion by the claimant that holding the hearing at a different venue would have made any difference to the outcome of the hearing and, therefore, I find that there is no reasonable prospect for the decision being varied or revoked on this basis.

[14]The finding of gross misconduct was made by the respondent, not this Tribunal, and it does not always denote a deliberate act, as it is commonly understood to include acts of negligence and omission. The Employment Tribunal only has jurisdiction to make a finding of the dismissal being fair or unfair under section 98 of the Employment Rights Act 1996. Therefore, this argument does not reveal any grounds for granting a reconsideration as there is no reasonable prospect of the original decision being varied or revoked.

[15]In all the circumstances, the claimant is seeking to re-argue his case and it is clear that he disagrees with the findings from the substantive hearing. It is self-evident that, in the majority of Employment Tribunal cases, the unsuccessful party will not agree with the findings and will consider that it is in the interests of justice that the judgement be reconsidered. However, that is not the purpose of a reconsideration rule. The claimant has not referred to any procedural errors, nor has he linked any of the criticisms raised in the application for reconsideration to the prospect of the original decision being varied or revoked.

[16]This application has been considered carefully and, by taking into account all of the documents submitted by Mrs Brown, I have reached the view that a hearing is not necessary in the interest of justice because there is no reasonable prospect of the judgment being varied or revoked and, therefore, the application for reconsideration is refused.