Ms E Cullen v Havering Care Provider Group Ltd: 3202043/2023
JUDGMENT
The claimant’s application dated 14 March 2025 for reconsideration of her application to amend her claim, considered at the preliminary hearing on 11 March 2025, is refused as there is no reasonable prospect of the decision being varied or revoked.REASONS
[1]On 11 March 2025, I conducted a preliminary hearing where I refused a number of applications by the claimant.[2]One of the applications was to amend her claim to add discrimination arising from disability.[3]Her claim had previously been considered at a preliminary hearing on 27 March 2024, where her claim was discussed in detail and all issues identified. A claim for harassment related to disability (Equality Act 2010 section 26) was agreed as an issue; discrimination arising from disability was not.[4]Following the hearing on 27 March 2024, the claimant wrote to the Tribunal seeking to amend her claim to include two additional respondents and to add discrimination arising from disability. This application was opposed by the respondents. I considered this application at the hearing on 11 March 2025.[5]By Rule 70 of the Employment Tribunal Procedure Rules 2024, the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a Judgment where it is necessary in the interests of justice to do so. On reconsideration, the Judgment may be confirmed, varied or revoked.[6]An application for reconsideration shall be presented in writing (and copied to all of the other parties) within 14 days of the date upon which the written record was the record of the hearing on 11 March 2025 had been sent to the parties.[7]Under Rule 70, a Judgment will only be reconsidered where it is necessary in the interests of justice to do so. This allows an Employment Tribunal a broad discretion to determine whether reconsideration of a Judgment is appropriate in the circumstances. The discretion must be exercised judicially. This means having regard not only to the interests of the party seeking the reconsideration but also 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]The procedure upon a reconsideration application is for the Employment Judge that heard the case to consider the application and determine if there are reasonable prospects of the Judgment being varied or revoked. Essentially, this is a reviewing function in which the Employment Judge must consider whether there is a reasonable prospect of reconsideration in the interests of justice. There must be some basis for reconsideration. It is insufficient for an applicant to apply simply because he or she disagrees with the decision.[9]If the Employment Judge considers that there is no such reasonable prospect, then the application shall be refused. Otherwise, the original decision shall be reconsidered at a subsequent reconsideration hearing. The Employment Judge’s role therefore upon the considering of the application upon the papers initially is to operate as a filter to determine whether there is a reasonable prospect of the Judgment being varied or revoked were the matter to be the subject of reconsideration hearing[10]The Employment Appeal Tribunal has given guidance as to the nature of a request for reconsideration:10.1 Reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to re-argue matters in a different way or adopting points previously omitted.10.2 There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule10.3 It is not a means by which to have a second bite at the cherry, nor is it intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.10.4 Tribunals have a wide discretion whether or not to order reconsideration. Where a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.[11]I am satisfied that I applied the correct law in this matter. I took account of the following:11.1 the balance of injustice/hardship in allowing/refusing the amendment;11.2 the remaining discrimination claim of harassment that addressed the matters raised by the claimant in her ET1 and associated documentation;11.3 that the claimant had a reasonable opportunity to discuss her claim and clarify issues at the hearing on 27 March 2024 and again on 11 March 2025; and11.4 concerns about the manner in which this case had been litigated by the parties.[12]I am not satisfied that it is in the interests of justice to reconsider the Judgment. The application is refused.