Mr G Hurst v City Fibre Holdings Ltd: 2502504/2019
EMPLOYMENT TRIBUNALS
Case No 2502504/2019
Between
Mr G HurstClaimantCity Fibre Holdings LimitedRespondentDate 2 December 2020
JUDGMENT
The claimant’s claim of disability discrimination is not made out and is dismissed. JUDGMENT having been sent to the parties and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The claimant was employed by the respondent from 4 March 2019 until he was dismissed on 4 April 2019.[2]The claimant complains that his dismissal was an act of direct disability discrimination.[3]The claimant has a sight impairment. The respondent accepts this is a disability within the meaning of the Equality Act 2010.[4]In his claim form, the claimant originally alleged that his dismissal was, in addition or in the alternative, an act of age and/or religion or belief discrimination, saying ‘I’m at a loss as to why I was dismissed, there is no obvious or credible reason for this malicious decision and therefore can only be an act of discrimination.’ The claimant subsequently withdrew those claims.[5]Therefore, the only issue for us to determine is whether, by dismissing the claimant, the respondent treated him less favourably because of his disability than it would have treated somebody else in circumstances that are not materially different.
Legal framework
[6]It is unlawful for an employer to discriminate against an employee by dismissing him: section 39(2) of the Equality Act 2010. Section 13 of the Equality Act 2010 provides that it is direct discrimination for an employer to treat an employee less favourably because of disability than it treats or would treat others in circumstances that are not materially different.[7]The burden of proof in relation to allegations of discrimination is dealt with in section 136 of the 2010 Act, which sets out a two-stage process. 7.1. Firstly, the Tribunal must consider whether there are facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an unlawful act of discrimination against the claimant. If the Tribunal could not reach such a conclusion on the facts as found, the claim must fail. 7.2. Where the Tribunal could conclude that the respondent has committed an unlawful act of discrimination against the claimant, it is then for the respondent to prove that it did not commit or, as the case may be, is not to be treated as having committed, that act.[8]The Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142, [2005] IRLR 258 made the following points in relation to the application of the burden of proof: 8.1. ‘It is important to bear in mind in deciding whether the claimant has proved facts from which the Tribunal could conclude that there has been discrimination that it is unusual to find direct evidence of … discrimination: few employers would be prepared to admit such discrimination, even to themselves and in some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in.’ 8.2. In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. 8.3. It is important to note the word ‘could’ in the legislation. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. 8.4. In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. 8.5. Where the claimant has proved facts from which the Tribunal could conclude that the respondent has treated the claimant less favourably because of disability, it is then for the respondent to prove that it did not commit that act or, as the case may be, is not to be treated as having committed that act. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic.[9]Simply showing that conduct is unreasonable or unfair is not, by itself, enough to trigger the transfer of the burden of proof: Bahl v Law Society [2003] IRLR 640, EAT, approved by the Court of Appeal at [2004] IRLR 799. Evidence and findings of fact[10]We heard evidence from the claimant and from a Mr M Hurst (unrelated to the claimant), who was a consultant engaged by the respondent. We also took into account the contents of a written statement from a Mr Hannah, a former colleague of the claimant at the respondent company. Mr Hannah had been due to give evidence but contacted the Tribunal to say he was not able to attend, for health reasons. After hearing the parties’ submissions we agreed to read Mr Hannah’s statement and accord it the weight we considered appropriate.[11]For the respondent we heard evidence from Mrs Malin, who had been the claimant’s manager.[12]In addition, we took into account the documents to which we were referred in a bundle of documents prepared for this hearing.[13]Important elements of this case were dependent on evidence based on people’s recollection of events that happened some 18 months ago. In assessing that evidence we bear in mind the guidance given in the case of Gestmin SGPS -vCredit Suisse (UK) Ltd [2013] EWHC 3560. In that case Mr Justice Leggatt observed that is well established, through a century of psychological research, that human memories are fallible. They are not always a perfectly accurate record of what happened, no matter how strongly somebody may think they remember something clearly. Most of us are not aware of the extent to which our own and other people’s memories are unreliable, and believe our memories to be more faithful than they are. In the Gestmin case, Mr Justice Leggatt described how memories are fluid and changeable: they are constantly re-written. Furthermore, external information can intrude into a witness’ memory as can their own thoughts and beliefs. This means that people can sometimes recall things as memories which did not actually happen at all. In addition, the process of going through Tribunal proceedings itself can create biases in memories. Witnesses may have a stake in a particular version of events, especially parties or those with ties of loyalty to parties, including employees and family members. It was said in that case: ‘Above all it is important to avoid the fallacy of supposing that because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’ In light of those matters, inferences drawn from the documentary evidence and known or probable facts tend to be a more reliable guide to what happened than witnesses’ recollections as to what was said in conversations and meetings. It is worth observing from the outset that simply because we did not accept one or other witness’ version of events in relation to a particular issue did not necessarily mean we considered that witness to be dishonest.[14]Some time in 2018 the respondent started recruiting for a new Programme Portfolio Manager to cover the North. The respondent’s Programme Portfolio Manager for IT and Systems did the initial sift through the applications and carried out telephone interviews. He gave extremely positive feedback about the claimant’s application and shortlisted him.[15]The final interviews were carried out by Mrs Malin. She interviewed the claimant in week commencing 14 January 2019. The interview lasted between an hour and an hour and a quarter. We accept her evidence that she did not notice any discolouration in the claimant’s eyes during the interview. Mrs Malin was impressed by the claimant’s CV and performance at interview. She thought he was sociable and outgoing and because of his experience she thought that he would be a good fit for the respondent company as he would really understand the challenges which the businesses faced. We accept her evidence that she believed the claimant would be able to do the job without much day-to-day support from her and, in her words ‘hit the ground running’.[16]The claimant was offered the job and accepted it. We accept the evidence of Mrs Malin that the key elements of the claimant’s role were as set out in paragraph 13 of her witness statement. It is not in dispute that the role involved extensive travel. It was Mrs Malin’s expectation that the claimant would dial into the various conference calls outlined at paragraph 14 of her witness statement. We accept the purpose of the meetings was a set out in her evidence.[17]The claimant started work for the respondent on Monday, 4 March 2019. There was no suggestion that the claimant mentioned his sight impairment or that he had a disability of any kind to anybody at the respondent company before he started work and we infer that he did not.[18]The following day, 5 March 2019, the claimant met with Mrs Malin. This was the second time they had met, the first time being during the claimant’s interview. There is a disagreement between the parties as to what was discussed in this meeting. There are two elements to the dispute. Firstly, there is a dispute as to whether anything was said about the claimant’s sight impairment. Secondly, there is a dispute as to what was said by Mrs Malin about the priorities she wanted the claimant to focus on.[19]With regard to the first point, the claimant’s evidence was that Mrs Malin noticed a difference in his eye coloration and that ‘the observation leads to further questions that reveals loss of sight.’ He said he revealed he had no vision in his left eye and that Mrs Malin then asked how this was likely to impact travel and everyday work activities. The claimant said he replied that so far he had successfully managed his career. His evidence was that he was left wondering about her motivation, that the mood had already changed and that he was uncomfortable. For her part, Mrs Malin denied any such conversation ever took place. She denied she even noticed any difference in the claimant’s eye coloration and denied she mentioned anything about his eyes. Our conclusions as to whether the conversation took place as alleged by the claimant are set out later in our judgment. For now, we record that there is no suggestion that the claimant said anything to anybody at the respondent company about his sight impairment during his employment other than on that date. We infer that he did not.[20]The parties also disagree as to what Mrs Malin said about the priorities the claimant should focus on in the short term. The claimant accepted on cross examination, and we find, that there was a discussion about priorities and that Mrs Malin identified two of those priorities as being the need to recruit a replacement for a self-employed contractor (Mr M Hurst), and the need for accurate and consistent reporting by the Project Manager in Aberdeen. Mrs Malin said in evidence that here were two other priorities discussed: the need to put Aberdeen’s Project Manager (Mr Hannah) onto a performance improvement plan and the need for the claimant to keep up-to-date with what was going on in the new Highlands PSN award. We return to this dispute later.[21]On 27 March the claimant attended an Ops team meeting. During that meeting the respondent’s Chief Network Officer carried out a question and answer session in front of some 120 people. During that session the claimant challenged the Chief Network Officer about OTDRs (ie the diagnostic tool used to detect problems in a length of fibre) and suggested that the respondent should start to use the OTDRs from his previous employer. The exchange resulted in the Chief Network Officer asking the claimant why he left that company if it was so great. We accept Mrs Malin’s evidence that she thought it was inappropriate for the claimant to be asking this kind of question in this forum, and that she did not consider it the claimant’s job to get involved with the technicalities of the equipment used which, in her view, was a job for the engineers.[22]Around about the same time the respondent’s Programme Portfolio Manager for IT and Systems told Mrs Malin that the claimant had asked him to go to the engineering meeting and pitch his former employers OTDRs to them. He said to Mrs Malin words to the effect of ‘I just wanted to let you know, as it’s a bit weird’.[23]On 28 March the claimant attending attended a training session. He told Mrs Malin that he was attending in an email which he sent just before noon that day. He said in that email that he was currently taking advantage of the introduction session and ‘this is running till 3pm; thereafter I’ll be catching a train and will be available to talk.’ Although the claimant’s evidence was that he was only present on the training for an hour or so, he gave the impression to Mrs Malin from that email that he would be involved in the training for three hours.[24]On 29 March there was an exchange of emails between the claimant, Mrs Malin and the respondent’s Programme Portfolio Manager for the South about the recruitment of Mr M Hurst’s replacement. Mrs Malin asked the claimant where he was with CVs and interviews. There was an exchange of emails about rewriting job descriptions and who was responsible for that. In response Mrs Malin asked ‘can we not amend the city project manager one with a couple of expanded points’ and made suggestions as to how that could be done. The claimant replied that he had it covered and he had three variations of Project Manager job descriptions. Mrs Malin replied ‘three???’ and said ‘thought we announced on Wednesday a single job description for project managers’. The claimant then referred to speaking with a Mr Rees and Mrs Malin responded ‘can you both make sure you’re aligned. Conscious John Rees is one very busy person. We shouldn’t have two sets of the same conversations.’ It is clear from these emails that Mrs Malin was expressing frustration about progress towards recruiting a replacement for Mr M Hurst.[25]Later on 29 March Mrs Malin spoke to the claimant over the phone. Mrs Malin described this as a one-to-one meeting. The claimant said it was just an ad hoc phone call. The claimant acknowledged in evidence that, during this call, Mrs Malin questioned why he had raised the issue about OTDRs with the Chief Network Officer the previous week. It is clear that she was critical of the claimant in that conversation. Mrs Malin’s evidence, challenged by the claimant, was that she also raised other things reflected in a note that she prepared in advance of the meeting.[26]The following week, on 3 April, there was an exchange of emails in the evening between the claimant and Mrs Malin about job descriptions for the replacement for Mr M Hurst. Mrs Malin sent an email saying ‘not sure why there isn’t a job description already…’ That night, Mrs Malin worked until 11:15 pm correcting data inaccuracies in the steering board report. She emailed the claimant that night in terms that made it clear that she was unhappy. The claimant replied the next morning and there was a further exchange of emails in which Mrs Malin asked why corrections had not been picked up on the Wednesday call and challenged the explanation given by the claimant.[27]On 4 April 2009 the respondent’s Project Manager for Peterborough told Mrs Malin that he had run a Wednesday call, including the discussions about cities the claimant was responsible for. Mrs Malin then sent the claimant an email expressing frustration and asking ‘are you struggling with the cadence and information?’ She followed this with an email saying ‘do you understand what is required? Are you driving this and taking ownership? She then sent a further email critical of the claimant in response to his reply. Mrs Malin then emailed the respondent’s Programme Portfolio Manager for the South at 10.39 saying ‘I’m probably going to let Graham go this afternoon. This exchange alone proves he doesn’t get this.’[28]Just before 1pm that day the claimant emailed Mrs Malin saying he believed Mr M Hurst’s contract should be extended beyond the dates that had been agreed. At 3:30pm Mrs Malin telephoned the claimant and told him his employment was being terminated. There is a dispute as to what Mrs Malin said about her reasons. The claimant’s evidence was that she said that his employment had been terminated for personal reasons. Mrs Malin’s evidence was that she said it was not working out as she had expected. The discussion became heated. We accept Mrs Malin’s account of that element of the discussion.[29]The claimant’s dismissal was confirmed in a letter emailed on 5 April. In that letter, the reason given for termination was that there were ‘significant performance shortfalls in business critical projects’ and no progress or improvements had been made. Over the following days and weeks the claimant sent a number of emails to various people in the respondent company. In a couple of those emails the claimant suggested he was appealing against his dismissal. A letter was sent to the claimant by email on 12 April elaborating on the alleged shortfalls referred to in the letter of 5 April.[30]Having set out those primary facts and observations about evidence, we now return to the question of whether a conversation took place about the claimant’s sight impairment on 5 March as alleged by the claimant.[31]In support of the claimant’s account are the following: 31.1. The claimant’s own evidence given at this hearing, although we refer back to what we say above about the reliability of witnesses’ recollections. 31.2. The claimant refers to emails he sent later that week which he says reveal insecurity about his position and show that he was seeking reassurance. We can see that those emails could be interpreted in that way. However, we note that the claimant makes no reference in those emails to any alleged conversation about his sight impairment and how that might affect his ability to do the job. That is a little surprising if, as the claimant implied, he was seeking to reassure Mrs Malin that it would not be a problem. 31.3. Also in support of the claimant’s account is the fact that he came into the role as the best candidate out of a field of many. Mrs Malin was very impressed with him and, on her own evidence, she remained impressed during week one of his employment. Yet less than five weeks in the job she dismissed him, ostensibly because of her view of his performance. Her evidence was that her opinion of him began to change during week three. On any view, if her account is to be believed, Mrs Malin reversed her opinion of the claimant after a very short period in the job. This causes us to question whether Mrs Malin could have genuinely reversed her opinion of the claimant’s abilities based on his performance over such a short space of time or whether, in fact, Mrs Malin had concerns about the claimant’s ability to do the job that stemmed from something else. 31.4. Linked to the above point is that Mrs Malin made no attempt at performance management. That might indicate that there were no genuine concerns about the claimant’s performance. However, if an employer had serious concerns about performance of such a senior employee so soon in the job we can see that it might be thought that performance management would be inappropriate. Indeed, that is one of the reasons employers have probation periods. Also, we note that evidence led by the claimant in the form of the statement by Mr Hannah and his own evidence about Mr Hannah suggests that it was not an unusual for Mrs Malin not to engage in performance improvement plans for those with short service.[32]The claimant also referred to documents that he submitted tended to show that certain documents produced by the respondent had been fabricated.[33]In support of the respondent’s case that no conversation took place about the claimant’s sight impairment on 5 March are the following: 33.1. Mrs Malin’s evidence given at this hearing. We remind ourselves, again, however, of the fallibility of memory. 33.2. Of more weight is the fact that the first time the claimant alleged there had been disability discrimination was in his claim form to the tribunal. Even then he did not refer to the alleged conversation on 5 March. The first time the claimant referred to the alleged conversation was in his impact statement at pages 33 to 34 the bundle when he referred to ‘unwanted comments about eye coloration between 4 March 2019 and 4 April 2019.’ The claimant there was imprecise about the date. Further detail of the comments allegedly made did not materialise until the case management hearing. 33.3. What is most surprising is that although the claimant sent numerous emails after he had been dismissed in which he challenged the fairness of his dismissal, in none of them did he mention that he believed he had been discriminated against or treated unfairly because of his sight impairment and nor did he mention anything about the conversation about his sight impairment on 5 March. In an email of 5 April to HR the claimant referred to alleged ‘falsification of events’ and his intention to bring a claim. He alleged Mrs Malin was unprofessional and referred to his dismissal as an ‘act of petulance’. In another email of 8 April the claimant referred to ‘to gross abuse and bullying.’ In another email the claimant alleged the termination was ‘a direct result of external influence interference based on calculated odious acts conducted by John Hewitt in collaboration with Bill McKenzie.’ In answer to a direct question, the claimant said in evidence that, at the time he was dismissed, he believed he had been dismissed because of his disability. Indeed his evidence was that immediately after the alleged conversation about his sight of 5 March he felt uneasy and that something was afoot. If that was the case it is surprising that he did not say anything about the matter in any of these emails. 33.4. When cross-examined about the absence of any reference to disability discrimination in his emails the claimant gave various unconvincing and contradictory responses. Referring to the allegation he made of external interference he said he was ‘alluding to possible interference that may have influenced’ Mrs Malin to ask about his eye on the second day of his employment. When asked why he did not, in his email, refer specifically to the alleged conversation about his sight on that day he said it was ‘because everything was in play’ and because he was ‘not jumping to any conclusions’. Other reasons the claimant gave for not mentioning, in the emails he sent following his dismissal, disability discrimination or the alleged conversation about his sight in March or his alleged belief that his dismissal had something to do with his sight impairment were ‘HR don’t want to discover the truth; they are the victims’; that he was ‘not aware of the term ‘discrimination’’; that he used the term ‘malicious’ in his emails to mean discrimination and to refer to an act committed on the second day of his employment; that ‘there was no call for it to be mentioned’ and that he was ‘not required to mention anything’; that he was ‘not litigious’; that ‘I have to be certain for my benefit and HR’; that he was ‘trying to get HR’s attention’; that they ‘don’t want to discover the truth’ and that he was ‘being strung along.’ 33.5. The claimant’s explanations as to why he did not mention in these emails his alleged belief that his dismissal had something to do with his sight impairment are unconvincing. As a senior manager with many years’ experience, including experience of people management, the idea that the claimant did not understand the concept of discrimination, if that is what he was suggesting, is implausible. We accept the claimant may not know his way around the Equality Act but we find it highly unlikely that he would not have been familiar with the concept of disability discrimination and known that dismissing someone because of a disability was unlawful. In any event, even if the claimant did not, at the time of his dismissal, understand the concept of discrimination, that does not explain why he did not say in any of the emails that he believed the reason he was dismissed was because of his sight impairment, particularly as he was threatening legal action. The overwhelmingly likely reason the claimant did not mention disability discrimination or a conversation about his sight in any of those emails was that the claimant did not, at the time of those emails, believe his sight impairment had anything to do with his dismissal and we infer that was the case. 33.6. That, in turn, leads us to doubt the claimant’s account of what was discussed on 5 March. It is clear from the claimant’s emails following his dismissal that the claimant was casting about for an explanation for his dismissal. It is understandable that he would do so given that he had been employed for only a month. The claimant’s evidence to this Tribunal was that, immediately after the alleged conversation about his sight on 5 March, he was left wondering about Mrs Malin’s motivation, the mood had already changed and that he was uncomfortable. However, if Mrs Malin had, as the claimant claims, said something that led him immediately to question her motivation, it is extremely unlikely that he would have discounted that as a possible reason for dismissal just five weeks later. Indeed, even if the claimant had considered her alleged comments to be innocuous at the time they were made (which was not the claimant’s evidence) it is very likely that he would have recalled them just a few weeks later when he was trying to understand why he had been dismissed.[34]Looking at all the evidence in the round, and giving particular weight to the emails sent by the claimant following his dismissal, it is our conclusion that the claimant’s account of the conversation that took place between him and Mrs Malin on 5 March is unreliable. We prefer the evidence of Mrs Malin on this matter. We accept her account of what was, and what was not discussed, on that day and find that there was no mention of the claimant’s eyes or his vision at all.[35]Furthermore, we found Mrs Malin to be a reliable witness and accept her evidence that she was genuinely dissatisfied with aspects of the claimant’s performance, which evidence is consistent with the fact that she criticised the claimant on 29 March about his interaction with the Chief Network Officer and the criticisms of the claimant contained in emails Mrs Malin sent before the claimant’s dismissal. For avoidance of doubt, we are not persuaded that the evidence shows that it is more likely than not that the respondent fabricated documents that were before us.
Conclusion
[36]We have found there was no conversation between the claimant and Mrs Malin about his eyes or his vision as alleged by the claimant. It is our conclusion that Mrs Malin did not know anything about the claimant’s sight impairment at any time during his employment. There was no suggestion by the claimant that Mrs Malin could have somehow guessed that he had a sight impairment and there was no evidence that this was a plausible possibility.[37]Given that Mrs Malin did not know about the claimant’s sight impairment, the claimant’s disability cannot have played any part in her decision to dismiss him.[38]It follows that the claimant’s complaint that the respondent discriminated against him by dismissing him is not made out.[39]Even if we had found that Mrs Malin could have guessed that the claimant had a sight impairment, there was no evidence that she had any concerns that it might affect his performance. The claimant’s own evidence was that he spent a lot of time driving in the first week of his employment; that being the case, Mrs Malin would have had no cause for concern about the claimant’s ability to drive, for example. It is for the claimant to prove facts from which we could conclude that his dismissal was because of his disability. The claimant clearly believes that the respondent treated him unreasonably in dismissing him after such a short period and without any opportunity to address any perceived shortfalls in performance. But even if we had agreed with him that that was unreasonable, the case of Bahl v The Law Society makes clear that unreasonable conduct on its own is not sufficient to establish a prima facie case of discrimination. Therefore, even if we had thought Mrs Malin could have guessed the claimant had a sight impairment, we would not have concluded that there were facts from which we could properly infer that she had dismissed the claimant because of that impairment. Therefore, the claimant’s claim would not have been made out even if we had found (which, for the avoidance of doubt we do not) that Mrs Malin could have guessed he had a sight impairment.
Conclusion
[1]By an email dated 12 March 2021, the claimant sought reconsideration of the tribunal’s Judgment in this matter dated 9 February 2021. By that judgment the tribunal dismissed the claimant’s complaint that the respondent discriminated against him by dismissing him.[2]A tribunal has power to reconsider any judgment where it is necessary in the interests of justice to do so: Rule70. An application by a party for reconsideration may be made at a hearing or in writing. If it is made in writing, it must be presented, with copies to all 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, if later, within 14 days of the date that the written reasons were sent, and it must set out why reconsideration of the original decision is necessary: rule71. A tribunal has the power under rule 5 to extend the time limit in appropriate cases.[3]The claimant’s application for a reconsideration under r 71 must first be considered by me as the judge who chaired the full tribunal which made it. If I consider there is no reasonable prospect of the original decision being varied or revoked, I must refuse the application. If I consider that there is some reasonable prospect of the original decision being varied or revoked I must seek a response from the respondent and seek the views of the parties on whether the matter can be determined without a hearing. The application is then to be determined by the full tribunal, whether it is dealt with at a hearing or on the papers.[4]In deciding whether it is necessary to reconsider a judgment in the interests of justice, the tribunal must seek to give effect to the overriding objective to deal with cases fairly and justly. That includes taking into account established principles. Those established principles mean the tribunal must have regard not just to the interests of the party seeking the review, but also to the fact that a successful party should in general be entitled to regard a tribunal’s decision on a substantive issue as final and to the public interest requirement that there should, as far as possible, be finality of litigation. As the court stressed in Flint v Eastern Electricity Board [1975] IRLR 277, QBD ‘it is very much in the interests of the general public that proceedings of this kind should be as final as possible.’[5]The claimant appears to be seeking to rely on new evidence. Where it is sought to persuade a tribunal, in the interests of justice, to reconsider its judgment on the basis of new evidence the test set out in Ladd v Marshall applies. Normally that means showing:(a) that the evidence could not have been obtained with reasonable diligence for use at the original hearing;(b) that it is relevant and would probably have had an important influence on the hearing; and(c) that it is apparently credible.[6]With regard to point (b), the claimant appears to have either misread or misunderstood parts of the judgment. The Tribunal did not make a finding of fact that the claimant ‘attended the full duration of the DepotNet meeting’ as suggested by the claimant. The finding of fact is as stated at paragraph 23 of the judgment. The evidence the claimant now wishes to put before the Tribunal would have no influence on that finding. Similarly, the Tribunal’s findings of fact as to what was discussed by the claimant and Mrs Malin on 29 March are those set out in the judgment. The claimant now appears to be seeking to put forward evidence of messages he sent on the afternoon of 29 March to show he was on a call with Mrs Malin at 3pm on 29 March that he was subsequently in communication with others. It is difficult to see how the additional evidence the claimant now seeks to put forward would have had an important influence on the hearing. In any event, nothing in the claimant’s application suggests that the evidence could not have been obtained with reasonable diligence for use at the original hearing. There are no doubt cases where the interests of justice would permit fresh evidence to be adduced notwithstanding that the principles set out in Ladd are not strictly met but this is not one of them.[7]It is clear to me that really what the claimant is saying is that he disagrees with the Tribunal’s assessment of the evidence and is seeking a second bite at the cherry. The claimant is of course entitled to disagree with the tribunal’s assessment of the evidence. That is not a proper basis on which to overturn the judgment, however.[8]The claimant refers in his application to the fact that the tribunal took account of a document that was marked ‘without prejudice’. It is not clear whether the claimant is suggesting that the tribunal was wrong to do so. If he is then his position is misconceived. EJ Johnson decided at a hearing on 16 March 2020 that the document was admissible. In an email of 20 April 2020 the claimant asked for that decision to be reversed, citing the same presidential guidance that he now refers to in this application. EJ Johnson refused that application. The claimant did not appeal that decision or the 16 March decision to the Employment Appeal Tribunal. The claimant raised the matter again at the start of the final hearing, seeking to have the same correspondence excluded on grounds that had been rejected by EJ Johnson. The Tribunal explained to the claimant that it was not open to us to overturn the decisions that had already been made. That remains the case now. The mere fact that the words ‘without prejudice’ are used in a document will not automatically render the communication inadmissible: South Shropshire District Council v Amos [1987] 1 All ER 340, [1986] 1 WLR 1271, CA.[9]I consider there is no reasonable prospect of the original decision being varied or revoked. It follows that I must refuse the application.[10]That being the case it is unnecessary for me to decide whether to exercise my discretion to permit the claimant to make his application outside the usual 14 day time limit.