Ms R MacGregor-Jackson v North Rutland Health Partnership: 2600151/2023
EMPLOYMENT TRIBUNALS
Case No 2600151/2023
Between
Ms R MacGregor-JacksonClaimantNorth Rutland Health PartnershipRespondent
Before
Employment Judge BrewerMr B Uduje (instructed by Counsel) for claimantMs A Doble (instructed by Counsel) for respondentDate 22 June 2023
JUDGMENT
[1]The claimant’s claim for unfair dismissal is dismissed as the Tribunal does not have jurisdiction to hear it,[2]The claimant’s claims under the Equality Act 2010 were presented out of time but it is just and equitable to extend time and those claims may proceed to a final hearing.
REASONS
[1]The application for reconsideration is refused as there is no reasonable prospect of the original decision being varied or revoked, because it is not the interests of justice to do so.[2]As recorded in the Case Management Summary of Employment Judge Hutchinson, dated 17 April 2023, the claimant conceded that she was employed by North Rutland Health Partnerships and that the other two named respondents should be dismissed from the proceedings. The claimant was represented by a Solicitor at the hearing and as set out in the application for reconsideration, the Solicitors acting for the claimant accepted in their Case Management Agenda, filed in advance of the Case Management Hearing, that the claims against the first and third respondents should be withdrawn. Those Solicitors will have understood that the consequence of withdrawing claims against a respondent would be a judgment dismissing the claims against them.[3]In those circumstances, quite correctly, Employment Judge Hutchinson issued a judgment dated 17 April 2023 dismissing the claims against ‘Market Overton & Somerby Surgeries’ and ‘Oakham Medical Practice and Market Overton & Somerby Surgeries’ (respectively the first and third respondents). That judgment was sent to the parties on 22 April 2023.[4]The application for reconsideration, sent in an e-mail dated 3 May 2023, appears to have been drafted by the same Solicitor who attended and represented the claimant at the Case Management Hearing on 17 April 2023 who now says that “It was not the Claimant’s understanding that Case No: 2600151/2023 11.6C Judgment – Reconsideration refused – claimant - rule 72 claims against any of the Respondents would be withdrawn following this hearing, as further instructions needed to be taken before this was possible – it was instead the Claimant’s understanding that all of these issues would be determined at the hearing in June 2023”.[5]With respect this appears to be a somewhat confused argument. The Case Management Agenda filed by the firm of Solicitors acting for the claimant stated that the claims against the first and third respondents should be withdrawn. Nowhere is it suggested that during the Case Management Hearing the Solicitor representing the claimant, from the same firm which drafted the claimant’s Case Management Agenda, sought to argue otherwise. In that case it is entirely unclear how it can now be said that “It was not the Claimant’s understanding that claims against any of the Respondents would be withdrawn following this hearing”. I assume that here the reference to “would be withdrawn” was meant to be “would be dismissed” since it is the dismissal judgment, consequent on the withdrawals, in respect of which reconsideration is sought.[6]The reconsideration application refers to a jurisdictional issue, which I presume is a reference to time limits, but that is no doubt a matter which was considered by the Solicitors acting in this matter on behalf of the claimant when they were instructed, when they completed the Case Management Agenda and during their representation of the claimant at the Case Management Hearing where that issue was clearly discussed.[7]In Outasight VB Ltd v Brown 2015 ICR D11, EAT, Her Honour Judge Eady KC accepted that the wording ‘necessary in the interests of justice’ in rule 70 allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’.[8]Given that, it seems to me that it cannot be in the interests of justice to reconsider a judgment where one party has, ex post facto, seems to have changed its mind on a matter which is the subject of a judgment.[9]So, on one view of the reconsideration application, all that the claimant’s Solicitors now appear to be saying is that having considered the matter after having received the judgment, they would now wish that the claims against the first and third respondents had not been withdrawn. But they were withdrawn, and a judgment was promulgated.[10]As I have indicated, that cannot reasonably be within what is meant by “in the interests of justice” since it indicates the very opposite of finality in litigation.[11]An alternative view of the reconsideration application is that the claimant’s Solicitors made an error in agreeing that the claims against the first and Case No: 2600151/2023 11.6C Judgment – Reconsideration refused – claimant - rule 72 third respondents should be withdrawn, either at all or at least at the case management stage.[12]Ordinarily, it is not in the interests of justice to reconsider a judgment because of an error made by a party’s representative. In that regard see Lindsay v Ironsides Ray and Vials 1994 ICR 384, EAT, in which an employment tribunal had reviewed its decision that an application was presented out of time on the basis that the claimant’s representative had not made any submissions on the issue of the tribunal’s discretion to allow a late application. The EAT ruled that the failings of a party’s representative — professional or otherwise — would not usually constitute a ground for review. If it were otherwise, there would be the risk that disappointed claimants would be encouraged to re-argue their cases by blaming their representatives. This would mean that tribunals would have to investigate the competence of representatives who would not be given the opportunity of defending themselves.[13]It seems to me that, in this analysis, in the present case the claimant’s Solicitors have, somewhat after the event, determined that they ought not to have decided to accept that the claims against the first and third respondents should be withdrawn (with the inevitable result that those respondents would be dismissed from the proceedings). However, they did, and the need for finality in litigation means that their decision cannot now be revisited, and it is not in the the interests of justice to reconsider the judgment of Employment Judge Hutchinson made on 17 April 2023.[14]For those reasons the application for reconsideration is refused.