Mrs A Chirita v Amazon UK Services Ltd: 3201620/2024
EMPLOYMENT TRIBUNALS
Case No 3201620/2024
Between
Mrs Ancuta ChiritaClaimantAmazon UK Services LimitedRespondent
Before
Employment Judge G. KingIn person for claimantMr C. Ludlow - counsel for respondentDate 7 February 2025
JUDGMENT
[1]The Claimant’s claim of unfair dismissal is not well founded and is dismissed.
REASONS
[1]The Claimant has applied for a reconsideration of the Judgment dated 7 February 2025 which was sent to the parties on 11 February 2025 (“the Judgment”). The grounds are set out in her email dated 25 February 2025. That email was processed at the Tribunal office on 26 February 2025.[2]This reconsideration has been on the papers alone as I did not consider that a hearing is necessary. The order made is described at the end of these[3]The law on reconsideration is governed by the Employment Tribunal Procedure Rules 2024. Under Rule 69 an application for reconsideration under Rule 68 must be made within 14 days of the date on which the Case Number: 3201620/2024 2 decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit.[4]Under Rule 5(7) the Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in the Rules or in any decision, whether or not (in the case of an extension) it has expired.[5]The grounds for reconsideration are only those set out in Rule 68, namely that it is necessary in the interests of justice to do so.[6]The ground relied upon by the Claimant is that she challenges the accuracy of the LENEL system which was used as evidence to dismiss her. She states there were several days with “major errors” and gives examples. The rest of her grounds is a re-iteration of her initial case that was presented as part of the original Tribunal hearing.[7]The Claimant accepted during the hearing that she had not challenged the LENEL reports at the time of her dismissal.[8]The matters raised by the Claimant were considered in the light of all of the evidence presented to the Tribunal before it reached its decision. Much of this was in fact considered by the Tribunal in reaching its original determination, being long established law.[9]Rule 68 provides a single ground for reconsideration, being the interests of justice. This replaced the previous test, which gave five grounds for reconsideration; one of these was that new evidence had become available since the conclusion of the Tribunal hearing to which the decision related, the existence of which could not have been reasonably known of or foreseen at that time. However, it is clear that, following Outasight VB Ltd v Brown [2015] ICR D11 EAT that the interests of justice test can be viewed through that lens. The EAT confirmed in that case that the test set out by the Court of Appeal in Ladd v Marshall 1954 3 All ER 745, CA.[10]In that case, the Court of Appeal established that, in order to justify the reception of new evidence, it is necessary to show three separate matters – that the evidence could not have been obtained with reasonable diligence for use at the original hearing, that the evidence is relevant and would probably have had an important influence on the hearing and, finally, that the evidence is apparently credible.[11]Applying the Ladd v Marshall test, I find that the evidence put forward by the Claimant would have failed the first test; any items that are genuinely new and could not have been obtained with reasonable diligence would have failed the second test, in that they would not have had an important influence on the hearing. Case Number: 3201620/2024 3[12]The function of the Tribunal at the hearing of the Claimant’s unfair dismissal claim was not to establish the accuracy of the LENEL reports, but to ascertain if the Respondent acted reasonably in dismissing the Claimant, in accordance with the test set out in British Home Stores Ltd v Burchell [1978] IRLR 379. The Claimant did not raise any of the challenges about the accuracy of the LENEL reports at the time, so it was reasonable for the Respondent to have placed reliance of them when it made the decision to dismiss the Claimant.[13]Accordingly, I do not find that the determination in this case should be reconsidered by virtue of the purported new evidence as this does not pass the tests in Ladd v Marshall. I do consider that it is in the interests of justice to allow the Claimant a second bite of the cherry because she did not bring to the Tribunal’s attention evidence that was available in support of her case at the original hearing. Furthermore, I do not consider that this evidence would have changed the outcome in any event. Finally, considerations of interests of justice should also have regard to the need for finality in litigation.[14]The earlier case law suggests that the interests of justice ground should be construed restrictively. The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does 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 interests 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”.[15]More recent case law suggests that the "interests of justice" ground should not be construed as restrictively as it was prior to the introduction of the "overriding objective" (which is now set out in Rule 3). This requires the Tribunal to give effect to the overriding objective to deal with cases fairly and justly. As confirmed in Williams v Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the "interests of justice" ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council v Marsden [2010] IRLR 743, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include Case Number: 3201620/2024 4 that there should be finality in litigation, which is in the interest of both parties.[16]Taken this together, I do not consider that it is in the interests of justice to reconsider the original Judgment.[17]Accordingly I refuse the application for reconsideration pursuant to Rule 70(1) because there is no reasonable prospect of the Judgment dated 7 February being varied or revoked.