Mr Paul Gallant v Stagecoach North East: 2501558/2017
EMPLOYMENT TRIBUNALS
Case No 2501558/2017
Between
Mr Paul GallantClaimantStagecoach North EastRespondent
Before
Employment Judge A.M.S. GreenIn person for claimantMr Nutman - Solicitor for respondentDate 6 April 2018
JUDGMENT
[1]The complaint not having been presented to the tribunal before the end of the period of three months beginning with the effective date of termination of 20 July 2017 (as extended by the period of ACAS Early Conciliation to 18 November 2017) of the Claimant’s employment the tribunal does not have jurisdiction to hear the claim. ___A Green[3]The claimant’s application dated 21 March 2018 for reconsideration of the judgment sent to the parties on 16 March 2018 is refused.
REASONS
There is no reasonable prospect of the original decision being varied or revoked, because: The Law I have reminded myself of the relevant provisions of Rules 70 -72 of the 2013 Rules which read: Rule70. A Tribunal may either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or 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 revoked it may be taken again. Rule71. 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 sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Rule 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…… The 2013 Rules only came into force on 29 July 2013 and introduced the new concept of reconsideration of judgments rather than a review of judgments as it was entitled under the previous 2004 Rules of Procedure. In the 2004 Rules there were five grounds on which a review could be sought and the last of the five was the single ground that now exists for a reconsideration under the 2013 Rules namely that the interest of justice render it necessary to reconsider. I consider that any guidance on the meaning of “the interests of justice” issued under the 2004 Rules (and the earlier Rules) is still relevant to reconsiderations under the 2013 Rules although the matter is very much one for me when carrying out (as I now do) a preliminary assessment of the Application. I remind myself that the phrase “in the interests of justice” means the interests of justice to both sides. I remind myself of the guidance from the Employment Appeal Tribunal in Redding 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. Now “justice” means justice to both parties”. I remind myself of the comments made by the Employment Appeal Tribunal in Fforde v Black EAT 68/80 where it was said that the words in the “interests of justice” do not mean: “…. that in every case where a litigant is unsuccessful he is automatically entitled to have the Tribunal review it. Every unsuccessful litigant thinks that the interest of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”. I have reminded myself of the guidance to Tribunals in Newcastle upon Tyne City Council – v- Marsden 2010 ICR 743 and in particular the words of Underhill J when commenting on the introduction of the overriding objective (now found in Rule 2 of the 2013 Rules) and the necessity to review previous decisions and on the subject of a review: “But it is important not to throw the baby out with the bath-water. As Rimer LJ observed in Jurkowska v Hlmad Ltd. [2008] ICR 841, at para. 19 of his judgment (p. 849), it is “basic” “… that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may have to be adapted on a case by case basis to meet what are perceived to be the special or exceptional circumstances of a particular case. But they at least provide the structure on the basis of which a just decision can be made.” The principles that underlie such decisions as Flint and Lindsay remain valid, and although those cases should not be regarded as establishing propositions of law giving a conclusive answer in every apparently similar case, they are valuable as drawing attention to those underlying principles. In particular, the weight attached in many of the previous cases to the importance of finality in litigation – or, as Phillips J put it in Flint (at a time when the phrase was fresher than it is now), the view that it is unjust to give the losing party a second bite of the cherry – seems to me entirely appropriate: justice requires an equal regard to the interests and legitimate expectations of both parties, and a successful party should in general be entitled to regard a tribunal’s decision on a substantive issue as final (subject, of course, to appeal”). I am reminded that in the decision Outasight VB Limited –v- Brown UKEAT/0253/14/LA. I have considered that guidance and in particular have noted what is said in respect of the admission of new evidence: “More specifically, as to an application to introduce fresh evidence after the determination of a case, the approach laid down in Ladd v Marshall will, in most cases, encapsulate that which is meant by the “interests of justice”. It provides a consistent approach across the civil courts and the EAT. Should a different approach be adopted in the ET because the principles of Ladd v Marshall are no longer expressly set out in the Rules? I do not think so. Those principles set down the relevant questions in most cases where judicial discretion has to be exercised upon an application to admit fresh evidence in the interests of justice”. The principles in Ladd –v- Marshall as to the admission of new evidence were given in the Judgment of Denning LJ in the following terms: “In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible”. Discussion and findings In summary, the Claimant states:
The Law
[1]He is dyslexic and has done his best to write his letter to the court. The letter that he has written is intelligible and I do not see that his dyslexia impacted on his ability to present his case at the hearing. He did not raise the question of his dyslexia before the Tribunal at the hearing and he seemed perfectly capable to answer questions and to make submissions. He was given additional time to prepare his submissions having heard the solicitor for the Respondent’s submissions.[2]He referred to his life being turned upside down since he left the Respondent’s employment. He referred to the impact on his life of being sanctioned under the Universal Credit scheme. This was raised by him in his evidence at the hearing.[3]He referred to the pain and difficulties that he suffers with his shoulder. This was raised by him at the hearing and some evidence was produced concerning his treatment.[4]He referred to taking Tramadol. This was also raised by him at the hearing, but he did not provide supporting medical evidence about this notwithstanding that he had ample opportunity to do so before the hearing and it appeared that he had the benefit of advice from his union and ACAS. He could have brought the evidence to the hearing. He had brought other papers, so he clearly knew about the importance of documentary evidence.[5]He claims that he was unable to send papers by post as there was no money due because of the benefit sanctions. During his evidence at the hearing, it was suggested by him that he had filed the Claim Form electronically. The issue before the tribunal was whether the Claim Form had been filed on time or whether there was justification to allow it to be received late. He could have brought the evidence to the hearing. He had brought other papers, so he clearly knew about the importance of documentary evidence.[6]He referred to the fact that he wanted the Tribunal to hear evidence of possible lawbreaking by the Respondent. That was not the purpose of the hearing. The hearing was a Public Preliminary Hearing to determine the narrow issue of jurisdiction of the Tribunal in circumstances where the Claim Form had been presented late. This was carefully explained to the Claimant at the beginning of the hearing and he confirmed his understanding to the Tribunal.