Mr D Carabott v London Borough of Newham: 3220504/2020
EMPLOYMENT TRIBUNALS
Case No 3220504/2020
Between
Mr D CarabottClaimantLondon Borough of NewhamRespondent
Before
Employment Judge Massarella
Members
Ms C. EdwardsMiss N. MurphyMr S. Chan (instructed by Counsel) for respondentDate 29 September 2023
JUDGMENT
[1]the Tribunal lacks jurisdiction to hear the Claimant’s claims; they were presented outside the statutory time limit; it was reasonably practicable to present them in time; the claims are dismissed.
REASONS
[1]This case was presented in December 2020. It has a long and complex procedural history, involving several preliminary hearings; it is a matter of record and is not summarised in this judgment.[2]The case was eventually listed for final hearing in July 2023. Unfortunately, owing to an administrative error, it was listed before a judge sitting alone, rather than a full panel (required because of the PIDA and TU pre-dismissal detriment claims). The Tribunal’s attempts to secure the attendance of nonlegal members who would be available for all five days were unsuccessful. There was no alternative to adjourning the hearing. The earliest available dates, which the parties could attend, were these dates in late September 2023.
The hearing
[3]The Tribunal spent the first morning of this hearing dealing with an application by the Claimant’s representative (Ms Driver, who is a U.S. attorney and who had been given permission at an earlier stage of proceedings to represent the Claimant by video link) to admit around 160 pages of additional documents, which had not been included in the bundle. Given that the existing bundle was over 700 pages long, we asked Ms Driver to consider which of these additional documents she would be referring to in the time allocated to the case. We gave the parties the afternoon of the first day to seek to resolve the issue, while we read into the case.[4]At the beginning of the second day, a supplementary bundle of 46 pages had been prepared, containing documents which the Respondent’s Counsel (Ms Chan) accepted were potentially relevant. We expected to begin hearing evidence that morning.[5]Ms Chan then raised a jurisdictional issue. She had been informed the night before by one of the Respondent’s witnesses (Mr David Humphries, who was the dismissing officer) that the dismissal letter, which the Respondent’s legal representatives had previously believed was sent by post to the Claimant on 10 July 2020, had also been sent to him by email on the same day. A question arose as to whether the claim had been presented in time. The only claims which had previously been accepted as being in time were those relating to dismissal (automatically unfair dismissal by reason of whistleblowing and/or trade union activities and ordinary unfair dismissal). All other claims predated the dismissal and were prima facie out of time. The strict ‘reasonably practicable’ test for an extension of time applied to all the claims.[6]The jurisdictional issue had been flagged up earlier in proceedings, on the basis that the effective date of termination had been given by the Claimant in his ET1 as 10 July 2020. That was the date identified in the dismissal letter as being the date of the termination of the Claimant’s employment. However, the Respondent had then accepted in correspondence that, given that the hard copy dismissal letter was sent by post on Friday, 10 July 2020, it would not have arrived before Monday, 13 July 2020, which it accepted would be the date of communication of dismissal, from which time ran. The Claimant contacted ACAS on 12 October 2020 and presented his ET1 on 10 December 2020, which was in time by reference to a termination date of 13 July 2020.[7]There had been no judicial determination of any jurisdictional issue. Insofar as there had been a concession by the Respondent that the claim was in time, it now appeared that the concession was based on incomplete information.[8]We reminded ourselves that a jurisdictional issue can be raised at any stage of proceedings. We considered that it was not only just to permit the Respondent to raise this issue now, but essential to do so. If it was not considered, there would be a possibility that the Claimant’s claims might be upheld in circumstances where the Tribunal lacked jurisdiction to determine them; alternatively, a multi-day trial might take place, at the conclusion of which the Tribunal would be bound to find that it had lacked jurisdiction all along. After some discussion with parties, the Tribunal decided that it be appropriate for the matter to be dealt with as a preliminary issue; if the argument was correct, it was a point which would knock the case out in its entirety.[9]We had already pointed out to Ms Driver that the Claimant had not led evidence in his witness statement about the time limits issues in relation to the pre-dismissal claims. We had offered her the opportunity to ask supplementary questions at the beginning of his oral evidence, so that he could explain why he issued those claims when he did and not earlier.[10]Because this new jurisdictional issue was a point which could lead to the dismissal all his claims, we decided that a more structured approach was required. We adjourned at lunchtime, so that the Claimant could give Ms Driver detailed instructions and a witness statement could be prepared. We asked that the statement be sent to the Respondent and the Tribunal by 6 p.m. that afternoon to enable the Tribunal to read it first thing the next morning and Ms Chan to prepare her questions. In fact, the statement was sent through at 16:33.[11]What the Tribunal did not know at that point, and only discovered when reading back through the voluminous case file on the third day of the hearing, was that a preliminary hearing on time had been listed in 2021, but converted to a case management discussion after the Respondent indicated that it no longer pursued the time point. As part of that process, the Claimant had already produced a witness statement, as well as a statement from his daughter. Neither of the legal representatives was aware of this. We gave them time to consider whether either of them wished to rely on those earlier statements; they both confirmed that they did not.[12]Consequently, we had regard only to the Claimant’s more recent statement and the documents in the bundle to which we were taken. We heard oral submissions from both representatives.[13]Evidence and submissions took a full day. We gave oral judgment on the fourth day of the hearing. Our findings and conclusions, set out below, were unanimous.
Findings of fact
[14]The Tribunal makes the following findings of fact on the balance of probabilities.[15]The disciplinary hearing, which was conducted by Mr Humphries, took place on 15 June 2020. The Claimant was assisted at the hearing by Mr Alex Owolade. He is not a lawyer; his role was as a Unite London & East Regional Accredited Support Companion. At the end of the hearing, Mr Humphries gave Mr Owolade permission to lodge some written submissions on behalf of the Claimant by 19 June 2020. Extensions were requested, and granted, to 22 June 2020 and again to 24 June 2020. In the event, Mr Owolade provided the document on 29 June 2020.[16]Mr Owolade telephoned the Claimant the same day and told him that Mr Humphries had emailed him to say that he had received the submissions and that the Claimant would get a decision within the next 10 working days.[17]We find that the Claimant understood that he would receive the decision no later than 13 July 2020, but that it might arrive earlier than that.[18]Mr Humphries sent the email attaching the outcome letter at 12:18 on 10 July 2020. He sent it to the Claimant’s personal email address, and it was received. Mr Humphries did not copy Mr Owolade in. In his covering email he wrote that the attachments had also been posted to the Claimant. The subject header of the email is: ‘Disciplinary Hearing Outcome’. There are four attachments, one of which is titled ‘Outcome Letter’.[19]The Claimant told the Tribunal in oral evidence that he had only very recently set up this email address. That was incorrect. We were shown an email from the Claimant to his employer on 22 August 2019, sent from the same email address, about the disciplinary investigation which was already underway. We note that the email is written in the first person. The Claimant had previously explained that his usual approach was to write something down and show it to his wife, she would then type it up, he would check it and it would then be sent. We were also taken to numerous emails from June 2020, which the Respondent’s managers and Mr Owolade sent to the Claimant about the ongoing disciplinary process. We are satisfied that sending emails to this address was an established means of communicating with the Claimant.[20]The Claimant is dyslexic. We accept his evidence that he habitually asked his wife to help him read and absorb emails. He told us that the account received a large number of emails because his wife also used it, among other things, for Internet shopping and buying items on eBay. He explained that his wife would sit down in the evening when she had time and go through his emails to see which were relevant and which were not. He also said that he would go through them himself.[21]The Claimant used the email address primarily for Facebook and online games. If he saw an email from the Respondent, he would say to his wife: ‘I’ve got one here from Newham, read that one.’ His wife worked Monday to Friday at a school. She worked long hours. The Claimant’s oral evidence was that he would not usually ask her to help him with emails when she got home from work but would probably ask her to go through them with him at the weekend. He suggested in his statement that he might wait until the beginning of the following week. We think that is unlikely because it is inconsistent with his evidence that he was reluctant ask for her help on a day when she was working.[22]The Claimant could not recall when he and his wife looked at the email containing the outcome letter, although he did not deny doing so, either in his witness statement or in oral evidence. Although he said in his witness statement that he did not pay much attention to his emails, he did not assert that neither he nor his wife had noticed this particular email when it arrived.[23]We also record that, in an email of 23 July 2020, Mr Owolade sent an email on the Claimant’s behalf to request an extension of the deadline to submit an appeal against dismissal, which begins: ‘As you are aware Dennis was dismissed on 10th July without notice’. In a second email, dated 31 July 2020, in which Mr Owolade submitted the grounds of appeal, he wrote: ‘I would like to submit Dennis Carabott’s Grounds of Appeal against the conduct and outcome of the disciplinary investigation and hearing which Mr Carabott received on 10th July 2020’ [emphasis added].[24]In our judgment, the fact that Mr Owolade, with whom the Claimant worked closely, identified 10 July 2020 as the date on which the Claimant received the outcome letter, is significant.[25]On the balance of probabilities, we find that the Claimant saw the email from Mr Humphries in his inbox on the day it arrived. He was expecting an outcome letter around this time; he was understandably very anxious about the outcome of the disciplinary process; we think it likely that he was looking out for any communication from his employer, or for any update from Mr Owolade, whether by post or email.[26]We find that he told his wife that it had arrived when she got home from work. We are prepared to accept his evidence that he did not ask her to go through the letter with him there and then because she had had a very long day at work. We note that the letter is several pages long and it would take the Claimant some time to go through it carefully.[27]We find that they read it together, at the very latest, on Saturday, 11 July 2020. The email was so clearly marked that anyone seeing it would have no doubt as to its contents. Once the Claimant and his wife had seen what it was, it would make no sense for them to ignore it: this was a communication of the utmost importance to both of them. Although it would have been better if the email had been copied to Mr Owolade, the fact that it was not copied to him does not show that the Claimant did not read it.[28]There was no evidence that he and his wife were away from home that weekend. We remind ourselves that Covid restrictions were still in place at that point and that there were limited options for leisure and travel. To find that the Claimant did not read the email at the weekend would require us to accept that neither the Claimant nor his wife looked at their email inbox over the weekend, when the Claimant’s own evidence was that this was an account which his wife used a great deal and which he himself used and checked.[29]Accordingly, we find that the Claimant knew that he had been summarily dismissed on 11 July 2020.[30]If we are wrong about that, we are satisfied that he had a reasonable opportunity to read the email and the attached dismissal letter on that date.[31]We do not accept the Claimant’s evidence that he was unable to read the letter by reason of ill-health, as he suggested in his oral evidence. Although the Claimant explained in his witness statement that his mother had sadly died in March 2020, and that he was devastated with grief and depression, we note that he had been signed fit to return to work by his GP and fit to attend the disciplinary hearing by OH in May 2020. That remained the position in July 2020. The law The date of dismissal
The law
[32]The relevant definition of the term ‘effective date of termination’ is contained in s.97(1) of the Employment Rights Act 1996 (‘ERA’). So far as is relevant, it provides: […] in this Part the effective date of termination –(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect […][33]In Gisda Cyf v Barratt [2010] ICR 1475, the Supreme Court held that that s.97 ERA was a statutory construct which should be interpreted in its setting as part of a charter protecting employee’s rights and, therefore, an interpretation that promoted those rights, as opposed to one which was consonant with traditional contract law principles, was to be preferred; that it would be unfair for time to begin to run against an employee in relation to an unfair dismissal complaint before the employee knew, or at least had had a reasonable chance to find out, that she had been dismissed; that, therefore, where dismissal without notice was communicated to an employee in a letter, the contract of employment did not terminate until the employee had actually read the letter or had had a reasonable opportunity of discovering its contents; and that, in considering whether the claimant had had a reasonable opportunity to discover the contents of the letter sent to her by her employer, the employment tribunal was entitled to take into account the reasonableness of her behaviour in failing to avail herself of a earlier chance to discover what it contained.[34]The Court rejected a narrowing of the term ‘reasonable opportunity’ in the test established in Brown v Southall & Knight [1980] ICR 617, so as to exclude consideration of an employee’s behaviour. Lord Kerr stated that concentrating solely on what is practically feasible may ‘compromise the concept of what can realistically be expected’. The tribunal had not erred in law in taking the claimant’s circumstances into account when considering whether she had had a reasonable opportunity to discover the contents of the letter, and the fact that she could have discovered the letter’s contents over the weekend by phone was one of the factors to be looked at. The Court noted as an aside that an employer who wants to be certain that an employee is aware of a dismissal always has the option of dismissing him or her face to face. Extension of time[35]S.111(2) ERA 1996 provides: an employment tribunal shall not consider a complaint [of unfair dismissal] unless it is presented to the tribunal –(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[36]The ‘reasonably practicable’ provision for extending time also applies in whistleblowing and trade union detriment claims and in claims of automatically unfair dismissal.[37]The Court of Appeal in Palmer v Southend-on-Sea Borough Council [1984] ICR 372 at [34] held that to construe the words ‘reasonably practicable’ as the equivalent of ‘reasonable’ would be to take a view too favourable to the employee; but to limit their construction to that which is reasonably capable, physically, of being done would be too restrictive. The best approach is to read ‘practicable’ as the equivalent of ‘feasible’ and to ask: ‘was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months?’[38]In Walls Meat Co Ltd v Khan [1979] ICR 52 at p.56, Denning LJ held that the following general test should be applied in determining the question of reasonable practicability. ‘Had the man just cause or excuse for not presenting his complaint within the prescribed time limit? Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences.’[39]In the same case (at p.61), Brandon LJ drew a distinction between a Claimant who is ignorant of the right to claim, and a Claimant who knows of the right to claim but is ignorant of the time limit: ‘While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. Thus, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making inquiries as to how, and within what period, he should exercise it. By contrast, if he does know of the existence of the right, it may in many cases at least, though not necessarily all, be difficult for him to satisfy an industrial Tribunal that he behaved reasonably in not making such enquiries.’
Conclusions
[40]Ms Driver argues on behalf of the Claimant that we should apply the rules in Part 6 of the Civil Procedure Rules as to the deemed date of service for certain documents. Ms Chan points out that the ET has its own rules (rules 85 to 92) in relation to the deemed date of service; there would be no grounds for importing rules from the CPR. In any event, we have concluded that neither set of rules has any application to the question we must decide. Those rules assist in determining the date of delivery of documents in the context of legal proceedings; they have no application to the question of when an employer’s decision to dismiss should be taken to have been communicated to an employee. The definitive guidance on that question was given by the Supreme Court in the Barratt case, to which we have referred, and which we have applied.[41]We agree with Ms Driver that the effect of Barratt is to level the playing field between employer and employee in one respect: in a case where summary dismissal was communicated by email the dismissal does not take effect when the email is sent, but rather when the employee is found to have read it, or had a reasonable opportunity to read it, or otherwise to discover its contents.[42]In Barratt, that led to an effective date of termination which was sufficiently late to bring that claim in time. In the present case it has led us to identify an effective date of termination which is one day later than the date on which the email was sent; that is not sufficiently late to bring the claim in time. We have found as a matter of fact, on the balance of probabilities, that the Claimant read the outcome letter with his wife on 11 July 2020, alternatively that he had a reasonable opportunity to do so on that date.[43]In view of those findings, time began to run for limitation purposes on 11 July 2020. The Claimant was obliged to notify ACAS so as to begin early conciliation no later than 10 October 2020. He did not do so until 12 October 2020 and so he does not benefit from an extension of time while early conciliation took place. He issued his claim on 10 December 2020. It was two months out of time.[44]We then turn to the question of whether time should be extended. We remind ourselves that, unlike in discrimination claims, in unfair dismissal and detriment claims we do not have a broad discretion to extend time on the basis that it is just and equitable to do so, by reference to a range of factors, including the balance of prejudice and the underlying merits of the case. The test in this context is the stricter ‘reasonably practicable’ test.[45]We considered whether the Claimant has advanced good grounds, from which we could conclude that it was not reasonably practicable for him to notify ACAS before the end of the limitation period.[46]There was no suggestion that the Claimant was ignorant of his right to bring these claims to a Tribunal. As for his awareness of time limits, the Claimant said in his statement that he believed he had three months to contact ACAS; he was plainly aware of the existence of the three-month time limit. He also said that he did not have anyone’s assistance in filing his claim; there is no suggestion that he was given misleading information by Mr Owolade. There was some suggestion in the Claimant’s oral evidence that he was told that time ran from the conclusion of the internal appeal process, although he could not remember who told him that. However, he also volunteered that someone (again, he could not remember who) told him ‘a little while after I was dismissed’ that, in fact, he only had 90 days and that he should go to ACAS. That is consistent with the fact that he commenced ACAS early conciliation before the appeal was concluded (in December 2020).[47]Having found that the Claimant knew that he had been summarily dismissed at the latest on 11 July 2020, we are satisfied that he knew that he needed to contact ACAS by 10 October 2020 at the latest.[48]We observe that, if there was to be any confusion about the date for contacting ACAS, we could understand why the Claimant might have believed that he had to contact ACAS by 9 October 2020, i.e. a day earlier, given that he may not have known that time ran from the date on which the employee learns, or had a reasonable opportunity to learn of the dismissal. By contrast, we can see no good reason at he would have believed that the mere fact that the postal version of the letter of dismissal did not arrive until 13 July 2020 gave him extra time, given that he had already seen the letter two days earlier, attached to an email. If he did believe that, in our judgement it was not a reasonable belief and, if he relied on it, he did not act reasonably.[49]Ms Driver points to the fact that, in one of the emails around this time, Mr Owolade asked Mr Humphries to send a hard copy of some documents to the Claimant. This does not alter the position. Whether or not the Claimant preferred to receive documents in hard copy form, for reasons connected to his dyslexia, we are satisfied that, as a matter of fact, he had read the electronic version of the letter on 11 July 2020 at the latest.[50]There was no cogent explanation as to why the Claimant left it until the very end of the limitation period to contact ACAS. For the reasons we have already given, we do not accept that his health was an impediment for his doing so. We note that he was able to draft and lodge an appeal by the end of July 2020.[51]In all the circumstances, we have concluded that it was reasonably practicable for the Claimant to present his claim in time. Consequently, the Tribunal does not have jurisdiction to hear the claims and they must be dismissed.
Conclusions
[1]By email dated 16 October 2023, the Claimant made an application for reconsideration of the Tribunal’s judgment dismissing his claim for lack of jurisdiction, sent to the parties on 2 October 2023. It consisted of a twoparagraph application, supported by several documents. Later the same day he submitted a three-paragraph addendum to his application, along with a copy of the witness statement produced by his daughter for a preliminary hearing in 2021. The law on reconsideration[2]Rules 70 to 73 of the Employment Tribunal’s Rules of Procedure 2013, make provision for the reconsideration of tribunal judgments as follows: 70. Principles 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 it is revoked it may be taken again. 71. Application 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. 72. Process(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. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.(2) If the application has not been refused under paragraph (1), the original decision shall be considered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.[3]The Tribunal thus has discretion to reconsider a judgment if it considers it is in the interests of justice to do so.[4]Under rule 72(1), I must dismiss the application if I consider that there is no reasonable prospect of the original decision being varied or revoked. It is a mandatory requirement for a judge to determine whether there are reasonable prospects of a judgment being varied or revoked before seeking the other party's response and the views of the parties as to whether the matter can be determined without a hearing, potentially giving any provisional view, and deciding how the reconsideration application will be determined for the purposes of rule 72(2): T.W. White & Sons Ltd v White, UKEAT/0022/21.[5]If I consider there are reasonable prospects, I must (under rule 72(2)) consider whether a hearing is necessary in the interests of justice to enable the application to be determined. A hearing would, unless not practicable, be a hearing of the full tribunal that made the original decision (rule 72(3)). If, however, I decide that it is in the interests of justice to determine the application without a hearing under rule 72(2), then I must give the parties a reasonable opportunity to make further written representations.[6]In Outasight VB Ltd v Brown UKEAT/0253/14 the EAT held (at [46-48]) that the Rule 70 ground for reconsidering Judgments (the interests of justice) did not represent a broadening of discretion from the provisions of Rule 34 contained in the replaced 2004 rules. HHJ Eady QC (as she then was) explained that the previous specified categories under the old rules were only examples of where it would be in the interests of justice to reconsider. The 2014 rules remove the unnecessary specified grounds, leaving only what was in truth always the fundamental consideration: the interests of justice. This means that decisions under the old rules remain pertinent under the new rules.[7]The key point is that it must be in the interests of justice to reconsider a judgment. That means that there must be something about the case that makes it necessary to go back and reconsider, for example a new piece of evidence that could not have been produced at the original hearing or a mistake as to the law. It is not the purpose of the reconsideration provisions to give an unsuccessful party an opportunity to reargue his or her case. If there has been a hearing at which both parties have been in attendance, where all material evidence had been available for consideration, where both parties have had their opportunity to present their evidence and their arguments before a decision was reached and at which no error of law was made, then the interests of justice are that there should be finality in litigation. An unsuccessful litigant in such circumstances, without something more, is not permitted to simply reargue his or her case, to have ‘a second bite at the cherry’ (per Phillips J in Flint v Eastern Electricity Board [1975] IRLR 277).[8]The expression ‘necessary in the interests of justice’ does not give rise to an unfettered discretion to reopen matters. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: ‘the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.’[9]In Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT, per Simler P (as she then was), held at [34] that: ‘a request for reconsideration is not an opportunity for a party to seek to re- litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. 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 rule. They are not a means by which to have a second bite at the cherry, nor are they 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.’ Assessment of the application under Rule 72(1)[10]Rule 72(1) requires me to make an initial assessment of the application to determine whether there are reasonable prospects of the original judgment being varied or revoked. I will take each point in the Claimant’s application and addendum in turn.[11]The Claimant seeks a reconsideration on the basis of ‘two new pieces of information I now have’, the first of which may have relevance to the issue of the effective date of termination, the second to the issue of extension of time.[12]The first document is what appears to be a printout of a hardcopy version of the letter of dismissal, dated 10 July 2020. In a one-paragraph statement in support of the Claimant’s reconsideration application, Mr Owolade wrote as follows: ‘During the Employment Tribunal Hearing Judge Massarella instructed me to look in my phone to see if I had pictures of decision letter that Dennis Carabott received on 13 July 2020, then photographed and sent to me. I did not have copies on my phone, however I had downloaded the pictures onto my computer. I found them and they are attached.’[13]The context is as follows. In the statement the Claimant prepared on the second day of the hearing to deal with the time limits point, he wrote at paragraph 8: ‘The first time Mr Owolade learned of my termination was on 13 July 2020 when I told him what the decision was and sent him a copy of the letter.’[14]Counsel for the Respondent asked the Claimant in cross-examination how he sent a copy of the letter to Mr Owolade. The Claimant replied that he took a photo of the letter and sent it through WhatsApp to Mr Owolade. Counsel then asked him whether he was sure that he did not forward the email which was sent on 10 July 2020. The Claimant said no. The Tribunal gave Mr Owolade and the Claimant’s wife the opportunity to look at the Claimant’s and Mr Owolade’s email and WhatsApp accounts to see if they supported the Claimant’s account. Neither of them could locate an email or WhatsApp message being sent from the Claimant to Mr Owolade on 13 July 2020. Various explanations were provided as to why this was, none of which the Tribunal found particularly plausible.[15]The Claimant now seeks to admit this document and Mr Owolade’s statement as new evidence.[16]Firstly, Mr Carabott was professionally represented at the hearing. Ms Driver had the opportunity to enquire of Mr Carabott and Mr Owolade on the afternoon of the second day of the hearing whether they had any evidence to support a suggestion that the first Mr Owolade knew of the dismissal was on 13 July 2020, as the Claimant said in his statement. They could have searched for, and provided, any records then or at any point during the rest of the hearing; it appears they did not do so. Moreover, Mr Owolade could have provided a statement in support of the Claimant’s recollection of the sequence of events at the hearing; he did not do so. The Tribunal gave them a further opportunity to make good the Claimant’s account on the third day of the hearing. In my judgment, this is evidence that could have been provided at the original hearing and it is not in the interests of justice to reconsider the decision on the basis of it.[17]Secondly, the evidence in the form it is presented now is of limited probative value. It is a printout of a photograph of the dismissal letter. There is no evidence as to when the photograph was taken or, if it was attached to a WhatsApp message, when that message was sent.[18]Thirdly, the only possible relevance of this evidence is if it is said to support a case that, if it can be proved that the first Mr Owolade knew about the dismissal was on 13 July 2020, then it follows that the first the Claimant knew about it was on that date. However, the Claimant did not say that in his statement, which was drafted with the assistance of Ms Driver. His evidence (paragraph 6) was that he ‘did not receive the letter Mr Humphries posted to me until Monday, 13 July 2020’ [emphasis added]. He did not state that he did not receive the email version of the letter Mr Humphries sent to him on 10 July 2020, only that he could not recall when he read it. The Tribunal found that the Claimant did receive the email on 10 July 2020 (paragraph 18 of the judgment). We went on to find on the balance of probabilities (paragraph 22 onwards) that he and his wife read the dismissal letter attached to the email on Saturday 11 July 2022 at the very latest.[19]Finally, and crucially, the Tribunal also found (paragraph 30 onwards) that, even if the Claimant did not read the email version of the letter on 11 July 2020, he had a reasonable opportunity to do so on that date. There is nothing in this new evidence to disturb that conclusion.[20]The second ‘new evidence’ the Claimant seeks to introduce relates to a purported attempt by him to contact ACAS on Friday 9 October 2020. This is a matter which the Claimant raised in the statement which he prepared on the time limits issue in 2021: see paragraph 11 onwards of the judgment. His daughter also prepared a statement at that time and the Claimant appended a copy of her statement to his addendum to the reconsideration application.[21]As we recorded in our judgment, it was the Tribunal which discovered the existence of these earlier statements and, when we did, drew them to the attention of the parties’ advocates, who were unaware of them. We gave them time (about an hour, according to my note) to take instructions from their respective clients, so they could decide whether either party wished to rely on these statements. When they returned, both advocates confirmed that their clients did not wish to rely on the statements. According to my note I asked them a second time whether either party wished to rely on them, and they confirmed again that they did not. Accordingly, we put them to one side. I note that, in his addendum to his reconsideration application, the Claimant expressly states: ‘I did not want to refer the Employment Tribunal judges to the evidence that was submitted in my previous hearing on timeliness in 2021’.[22]This is not new evidence; it is evidence which was available to the Claimant and his representative at the hearing in September 2023 (indeed long before then). The Claimant chose not to rely on it. I reminded myself of the guidance in Liddington (above) that ‘a request for reconsideration is not an opportunity for a party to seek […] to reargue matters in a different way or by adopting points previously omitted’.[23]The Claimant has not explained why he did not wish to rely on it. Although it is not strictly necessary for me to do so, I observe that it may be because the accounts given in 2021 and 2023 about his experience of contacting ACAS are so very different.[24]The explanation given in the statement drafted in 2023 at paragraph 8 is as follows: ‘I believe I had three months, that is until 13 October 2020, to file my employment claims. I filed my claims on 12 October 2020 just to make sure that they were filed on time. I filed my claim without anyone’s assistance. A worker at ACAS named Liz Edejer, who helped me, filled out the forms the minute I told her that I was dyslexic.’[25]There is no reference to the Claimant encountering any difficulties with ACAS.[26]By contrast, in his reconsideration application he now alleges that he phoned ACAS on 9 October 2020, ‘hoping I could find someone who would assist me in filing a claim’ but that he ‘could not get an ACAS representative to take my information over the phone’. In the statement the Claimant’s daughter provided in 2021, she wrote that he called her on 9 October 2020: ‘[stating] he was having difficulties submitting his application form to ACAS. He told me that he was advised by ACAS to ask a family member to help him to complete and submit online his application form, as they were unable to help. My mother was away at the time and the earliest I could get home to help my father was on Monday, 12 October 2020. On Monday, 12 October 2020 I helped him successfully submit his claim form to ACAS online.’
Conclusion
[27]For all these reasons, I am satisfied that there is no reasonable prospect of the Tribunal varying or revoking its judgment. The application for reconsideration is refused pursuant to rule 72(1) because it is not necessary in the interests of justice to reconsider the judgment.[28]Because I have dismissed application at the first stage, I have not invited the Respondent to comment on it.
Conclusion
[1]By email dated 10 November 2023, the Claimant made a second application for reconsideration.[2]Rule 72(1) of the 2013 Tribunal rules provides: 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. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application.[3]This second application purported to be an application for reconsideration of the Tribunal’s earlier judgment on reconsideration, sent to the parties on 27 October 2023. In my judgment, it was, in substance, a second application for reconsideration of the original decision dismissing the Claimant’s claims for want of jurisdiction, sent to the parties on 29 September 2023. I consider that it is ‘substantially the same application [which] has already been made and refused’, i.e. an application to revoke the Tribunal’s decision to dismiss the claims for want of jurisdiction. Insofar as additional arguments are now made in support of the application, I consider that there are no special reasons why those points could not have been made in the original application.[4]Further, this second application to reconsider the original decision is long out of time. Given that the Claimant was able to lodge an in-time application on 16 October 2023, I consider that there are no good reasons for extending time. Case Number: 3220504/2020[5]For these reasons I am satisfied that there is no reasonable prospect of the Tribunal varying or revoking its judgment. The application for reconsideration is refused pursuant to rule 72(1) because it is not necessary in the interests of justice to reconsider the judgment.[6]Because I have dismissed the application at the first stage, I have not invited the Respondent to comment on it.[7]The Claimant has lodged an appeal to the Employment Appeal Tribunal, and it is in that forum that he should now pursue any challenge to the Tribunal’s original decision.[8]I apologise to the parties for the delay in dealing with this application, which was not referred to me until earlier this week.