Employment Judge S MatthewsIn person for claimantMr. Munro (instructed by Counsel) for respondentDate 3 February 2025
JUDGMENT
[1]The claimant’s application for interim relief under s.128 of the Employment Rights Act 1996 does not succeed.
REASONS
Conclusion
[1]The claimant was employed by the respondent from 13 February 2024 to either 19 March 2024 or 26 March 2024 (the date is not agreed by the parties). He was employed as a Surveyor and his role required him to carry out surveys relating to energy efficiency at domestic properties. The hearing before me today was to decide the claimant’s application for interim relief made under s.128 of the Employment Rights Act (ERA) 1996.
The Law
[2]The claimant claims that he was dismissed contrary to s.103A of ERA 1996. He claims he was dismissed because, or principally because, he made a protected disclosure, or disclosures, within the meaning of s.43B of the Employment Rights Act 1996.[3]I did not hear any evidence today and made no finding of fact. The summary set out in paragraphs 4 to 6 below is taken from the documents and the information given to me by the parties at the hearing and is not intended to bind a future tribunal.[4]The first alleged protected disclosure took place on 13 or 14 March 2024 (the exact date is not material for this application) and relates to an incident on 13 March 2024. The claimant reported that he was attacked by a dog at a property he visited. He also had concerns about a child at the property locked in a car with the dog. He raised what he termed ‘safety concerns’ regarding the workload, stating that he could not see how it was possible to do the work in the allocated time. He referred to ‘environmental issues with failed appointments.’[5]Two further alleged protected disclosures took place on 25 March 2024 and 7 May 2024. These related to concerns about his training and compliance.[6]The respondent disputes the claim but has not yet filed Grounds of Response. Accordingly, the respondent’s case regarding matters such as the date of termination, whether there was a dismissal and the reason for termination is not formally before the tribunal.[7]I had before me a bundle of documents prepared by the claimant. It was divided into 30 sections and an accompanying excel spreadsheet described the content of each section. The law Interim Relief application[8]Section 129 (1) ERA 1996 sets out the test for the tribunal when considering an application under s.128 ERA 1996 (emphasis added): ‘This section applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— (a)that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i)section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or .....’
Conclusion
[9]An application under s. 128 ERA 1996 requires the tribunal to consider whether it is likely that the tribunal will find that the automatically unfair reason for dismissal is established. The task of the tribunal is to carry out an expeditious summary assessment on the material available to it, doing the best it can with untested evidence.[10]The case of Taplin v Shipman [1979] IRLR 450 provides that the claimant needs to show that he has ‘a pretty good chance’ of succeeding in proving that the sole, or principal, reason for his dismissal was that he had made one or more protected disclosures. The Employment Appeal Tribunal (EAT) stated that the bar is higher than ‘a real possibility’ or ‘reasonable prospect’ or ‘51 per cent or better chance of success’.[11]The burden of proof in an interim relief application is intended to be greater than that at the full hearing where the tribunal need only be satisfied on the balance of probabilities. The test is not ‘more likely than not’ but something nearer to certainty than mere probability.[12]In cases where the tribunal is faced with a conflicting account of key facts and issues it may conclude that the conflict cannot be resolved at an interim relief hearing. In Parsons v Airplus International Limited EAT 0023/16, an Employment Judge refused the claimant’s interim relief application noting that, while some of the disclosures were likely to be found to be protected disclosures, resolution on whether these formed the reason for dismissal was less clear cut. The EAT agreed with that approach on appeal.[13]Similarly, in Meredith v Hako Machines Limited, ET Case No. 3400491/2016, an Employment Judge refused to grant interim relief because the claimant had not overcome the high hurdle of establishing that it was sufficiently likely his dismissal would be found to have been caused by the making of the protected disclosures. Dismissal for a protected disclosure[14]An employee who is dismissed because of a protected disclosure shall be regarded as unfairly dismissed if that is the reason (or, if more than one, the principal reason) for dismissal (s.103A ERA 1996).[15]A claimant bringing a claim under s.103A ERA 1996 needs to show that the disclosures they allege qualify for protection under the Act. The definition of a qualifying disclosure is set out in s.43B of the ERA 1996: ‘(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a)that a criminal offence has been committed, is being committed or is likely to be committed, (b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c)that a miscarriage of justice has occurred, is occurring or is likely to occur, (d)that the health or safety of any individual has been, is being or is likely to be endangered, (e)that the environment has been, is being or is likely to be damaged, or (f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.’[16]A tribunal must address whether one or more of the elements set out at s. 43B (1) (a) to (f) required for the disclosures to constitute qualifying disclosures are present. If they constitute qualifying disclosures did the claimant make the disclosures in the reasonable belief that they were in the public interest? Even if that is found by the tribunal to be the case were the disclosures the sole or principal reason for the claimant’s dismissal? Submissions[17]I heard oral submissions from both parties.[18]The respondent’s case is that termination of the claimant’s employment took place on 19 March 2024. The claimant’s case is that termination did not take place until 26 March 2024 because he was given one week’s notice.[19]The date of termination is important because only the first disclosure was made before the date the respondent alleges the employment was terminated. It is open to the respondent to argue that it cannot have been influenced by disclosures that took place after the termination or after the decision to dismiss was made.[20]Counsel for the respondent further submitted that the disclosures did not tend to show any of the factors set out in s.43B ERA 1996 and moreover that they were not in the public interest.
Conclusions
[21]I decided to start by considering whether the claimant is ‘very likely’ to persuade the tribunal at the final hearing that one or more of the alleged protected disclosures materially influenced the decision to dismiss.[22]The alleged disclosure on 13 or 14 March 2024 took place before the termination of the claimant’s employment and there is at least a possibility that the claimant will be able to show that it influenced the respondent’s decision to dismiss (if indeed there was a dismissal).[23]The alleged disclosure on 25 March 2024 potentially took place after the termination date and/ or the decision to dismiss. The effective date of termination is an issue for the tribunal to resolve upon hearing the evidence.[24]The alleged disclosure on 7 May 2024 took place after the termination date and the claimant has not explained how he considers it could have influenced any decision to dismiss.[25]I have therefore decided that the claimant is not ‘very likely’ to succeed in his claim that the disclosures on 25 March 2024 and 7 May 2024 were the sole or principal reason for his dismissal.[26]Regarding the alleged disclosure on 13 or 14 March 2024, the respondent may argue that it had an alternative reason for dismissal, namely performance issues. The claimant was still on probation. It is premature for me to make findings in that regard; it will be a matter for the tribunal to decide after hearing evidence.[27]I have considered whether the 13 or 14 March disclosure is likely to be found by the tribunal at the final hearing to be a protected disclosure. The content of the disclosure relates to the claimant being almost bitten by a dog and a child being left in the car with the dog. He refers to safety concerns related to his workload and concerns about missed appointments. It is not clear at this stage, and without hearing his evidence, whether the claimant will be able to establish that he reasonably believed that disclosure was in the public interest. That will have to be decided at the final hearing.[28]The claimant has not set out which of the factors in s.43B (1) (a) to (f) he is relying on. He has not specifically set out, for example, what legal obligation he considers to have been breached or what criminal offence has been committed. These are matters that need to be clarified in a list of issues that will be discussed at the forthcoming Case Management hearing. It is not sufficiently clear now for me to decide that he has a high likelihood of succeeding in his final claim.[29]Accordingly, I was unable to conclude that the claimant’s claim that he had been dismissed for making a protected disclosure or disclosures, had a pretty good chance of success. For that reason, the application for interim relief fails. Employment Judge Matthews Date: 26 June 2024 Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/
Findings of Fact
[30]The Claimant gave evidence that he felt that his employment continued until the outcome of his appeal. However, I find that the Claimant’s employment did not continue until the outcome of the appeal, there was nothing in the Claimant’s contract of employment to suggest that his employment continued beyond the date of dismissal and the Claimant accepted in evidence that he knew and believed that on 15 March 2024 he had been dismissed when Mr Pidgeon told him his last day was 19 March 2024.
The Relevant Law
[31]Section 43A Employment Rights Act 1996 (‘ERA’) provides that a protected disclosure is ‘a qualifying disclosure’ as defined by section 43B ERA.[32]To summarise section 43B ERA: a qualifying disclosure is(i) a disclosure of information that(ii) in the reasonable belief of the worker making it, is made in the public interest and(iii) tends to show that one or more of six ‘relevant failures’ has occurred, is occurring or is likely to occur.[33]The Claimant relies upon the relevant failures under section 43B (1) (b), (d) and (e) ERA as set out below: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—….. (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject …… (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment had been, was being or was likely to be damaged; (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”[34]In determining whether the worker has made a protected disclosure that discloses information and is made in the public interest the worker must have a reasonable belief. The test of what is a reasonable belief is both subjective and objective. Subjective because the worker has the required belief as a matter of fact and on a subjective basis and objective because if they do have that belief, that their belief is a reasonable belief to hold on an objective basis.[35]Section 43C ERA sets out that disclosures made to an employer in good faith are a qualifying disclosure. “43C. Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith: (a) to his employer.” What is a protected disclosure?[36]A belief which is wrong still meets the requirements of section 43B ERA, provided it is reasonably held (Babula v Waltham Forest College [2007] EWCA Civ 174, CA).[37]The definition of a qualifying disclosure requires the ‘disclosure of information which, in the reasonable belief of the worker, is made in the public interest.’ Disputes that are essentially personal contractual disputes are unlikely to qualify (Millbank Financial Services Ltd v Crawford [2014] IRLR 18, EAT).[38]It is not sufficient that the Claimant has simply made ‘allegations’ about the wrongdoer especially where the claimed whistleblowing occurs within the Claimant's own employment, as part of a dispute with his or her employer (Cavendish Munro Professional Risks Management v Geduld [2010] IRLR 38).[39]Qualifying disclosures must involve a disclosure of information, i.e. must convey facts, rather than merely raise an allegation. There must be the disclosure of information. In Williams v Michelle Brown AM [2019] UKEAT/0044/19 the EAT stated ‘If the Tribunal properly concludes that the factual content of the claim disclosure cannot reasonably be construed as tending to show a criminal offence [or other relevant breach of section 43B(1)] then that conclusion will by itself be fatal to the proposition that there was a qualifying disclosure relying on section 43B(1). That will be so regardless of what the Claimant subjectively believed, and regardless of whether or the other elements are shown'.[40]Under section 43B(1)(b) ERA there must be an actual or likely breach of the relevant obligation by the employer (Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540, EAT). The word 'legal' must be given its natural meaning.[41]The fact that the Claimant making the disclosure thought that the employer's actions were morally wrong, professionally wrong, or contrary to its own internal rules may not be sufficient (Eiger Securities LLP v Korshunova [2017] IRLR 115, EAT). The source of the obligation should be identified and capable of certification by reference for example to statute or regulation. ‘Likely’ means probable or more probable than not. It is not sufficient that the Claimant reasonably believed that the relevant disclosure of information tended to show that a person ‘could’ fail to comply with a legal obligation, or that there was a possibility or risk of non-compliance (Kraus v Penna Plc [2004] IRLR 260).[42]The Court of Appeal provided guidance in Kilraine v London Borough of Wandsworth [2018] ICR 1850, holding that for a statement to be a qualifying disclosure, there must be sufficient factual content and specificity to show that one of the listed matters in section 43B(1) is engaged. ‘If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure that he makes has a sufficient factual content and specificity such that it is capable of tending to show that matter listed, it is likely that his belief will be a reasonable belief’.[43]It is the Claimant who bears the burden of proof on establishing the relevant failure in respect of the whistleblowing legislation. (Blackbay Ventures Ltd v Gahir [2014] IRLR 416, EAT). Automatic unfair dismissal by principal reason of protected disclosure[44]Section 103A of ERA states ‘an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason or, if more than one, the principle reason for the dismissal is that the employee made a protected disclosure’.[45]The statutory question is what motivated a particular decision maker to act as they did? (Kong v Gulf International Bank UK Ltd [2022] IRLR 854). The reason or principal reason for the dismissal means the employer’s reason.[46]In Babula v Waltham Forest College [2007] ICR 1026 the Court of Appeal held that ‘An Employment Tribunal hearing a claim for automatic unfair dismissal has to make three key findings. The first is whether or not the employee believes that the information he is disclosing meets the criteria set out in one or more of the subsections in ERA 1996, section 43B(1)(a)- (f). The second is to decide objectively whether or not that belief is reasonable. The third is to decide whether or not the disclosure is made in good faith.’[47]In Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4, EAT, the EAT stated at paragraph 32 referring to the EAT judgment of Boulding v Land Securities Trillium Ltd UKEAT/0023/06 ‘as to any of the alleged failures, the burden of proof is upon the Claimant to establish upon the balance of probabilities, any of the following,(a) there was in fact, and as a matter of law, a legal obligation or other relevant obligation on the employer in each of the circumstances relied on;(b) the information disclosed tends to show that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which he is subject.’ The EAT continued at paragraph 61, ‘Belief seems to us to be entirely centred upon a subjective consideration of what was in the mind of the discloser. That again seems to be a fairly low threshold.’[48]A case of whistleblowing dismissal is not made out simply by a 'coincidence of timing' between the making of disclosures and termination (Parsons v Airplus International Ltd [2017] UKEAT/0111/17). Analysis & Conclusions[49]As I have found that the Claimant was dismissed on 19 March 2024, nothing the Claimant disclosed thereafter that had not already been disclosed could have had anything to do with the Claimant’s dismissal as it was disclosed after the dismissal.[50]In those circumstances, I only considered whether the matters that the Claimant raised in his email 14 March and his incident report containing the alleged disclosures.[51]In the Claimant’s submissions he referred to a phone recording that was 30 minutes which was after the Claimant was dismissed and between the Claimant and Ms Campbell. The Claimant submitted that the relevance of that conversation was that he had highlighted to Ms Campbell that serious matters were taking place. However, I found that Mr Pidgeon dismissed the Claimant and not Ms Campbell. The Claimant did not say that Ms Campbell had anything to do with his dismissal or that Mr Pidgeon told her anything about the reason why he was dismissed. I therefore did not listen to the recording as I did not consider the recording to be relevant to anything I had to decide.[52]The issue at 2.1.1.2 that contains the concerns that the Claimant raised are not the same as the protected disclosures that the Claimant told me in evidence that he made. I have therefore drawn conclusions on the alleged protected disclosures that the Claimant told me that he made rather than the list of issues which does not in any event amount to a pleading.[53]I conclude that it was not a disclosure where the Claimant raised the issue of the customer being rude about being asked for bank statements in the Claimant’s incident report. The statement did not contain any information as the customer had told the Claimant that she had already spoken to the Respondent. The Claimant was complaining about the behaviour of a customer, Claimant was not telling them any information, the Respondent already knew, and the Claimant knew that the Respondent already knew. The statement does not tend to show there was a breach of a legal obligation such as the GDPR. Nothing in the statement refers so are implies that there is a breach of any legal obligation. I conclude that it does not amount to a protected disclosure.[54]There is no disclosure of information when the Claimant states “As you are aware, one of the major issues I and other surveyors are currently facing are time to conduct the survey, travelling and uploading documentation via Ecosurve.” The Claimant admitted that when he raised this issue with his line manager Ravi, his line manager gave him tips and training. The Claimant did not know what issues the other surveyors had with their work, only his manager. The Claimant did not reasonably believe the statement tended to show there was a breach of a legal obligation or the health or safety of any individual had been, was being or was likely to be endangered was in the public interest. The Claimant was expressing a concern, it did not amount to a protected disclosure.[55]Furthermore, the statement “In addition to this, I have some safety concerns.” Itself does not convey any information that tends to show the health or safety of any individual had been, was being or was likely to be endangered was in the public interest but is an expression of concern, it is too vague. I also conclude that it does not amount to a protected disclosure.[56]I do consider that the statement about being bitten by a dog, and “I honestly cannot see how it is possible to do this amout of work in the given day and time frames. I would happy make myself available for someone to show me how to conduct the the above within the given time frame of 8 hours.” And all the statements concerning the Claimant’s working more time than his 40 hour work week, as well as the example paragraph in the 14 March 2024 email and the Claimant’s statement that he had witnessed the customer locking her child in the car with a dog [48] is information tending to show that the health or safety of any individual had been, was being or was likely to be endangered.[57]I also conclude that I honestly cannot see how it is possible to do this amout of work in the given day and time frames. I would happy make myself available for someone to show me how to conduct the the above within the given time frame of 8 hours.” As well as the line “Please could someone explan how I possibly carry out the following safely……” and the example paragraph in the 14 March 2024 email [48] does not tend to show a breach of a legal obligation under BIS 2030 & BIS 2035. The Claimant accepted in evidence that he did not know about the BIS until after the sending of the email he did not have the reasonable belief when he sent the email.[58]However, nothing the Claimant stated in the 14 March email, or the incident report amounted to information tending to show the environment had been, was being or was likely to be damaged. In particular, where the Claimant had customer’s cancel appointments at the last moment because they had not been told of his arrival or the customer was not available and so he would have a wasted journey, particularly when the Claimant’s office would try and find him another appointment locally, the statement did not tend to show that the environment had been damaged or was likely to be damaged.[59]I do not doubt that the Claimant’s belief that the disclosures are in the public interest is genuine. However, it was not reasonable for the Claimant to believe that the alleged matters raised in the email were protected disclosures, with one exception that I will address a bit later. In particular, where the Claimant by his own admission put himself in a position of risk when he was bitten by a dog, a risk assessment could not have made a difference in those circumstances, and it was not reasonable for the Claimant to believe that it was in the public interest. Also, in relation to the hours of work that the Claimant was doing. The Claimant admitted in evidence that he did not speak to any other surveyors whether he could carry out his work in his contractual hours, he had no idea whether the amount of work he was struggling to do was the same for anyone else in his position, he had no evidence of any such situation and so I conclude that it was not the Claimant’s reasonable belief that it was in the public interest. This was more in line with a contractual dispute as referred to in Millbank Financial Services Ltd v Crawford.[60]I accept that the Claimant’s disclosure that he had been left unattended with a vulnerable child and witnessed the customer locking her child in the car with a dog does disclose information that tended to show that the health and safety of a person was likely to be endangered and the Claimant had a reasonable belief that it was in the public interest.[61]The Claimant’s evidence was that what the Claimant was told in the email by Mr Pidgeon was the same as what he was told on the phone in the conversation afterward where he was dismissed except that Mr Pidgeon told him in addition that his last day would be 19 March 2024. The Claimant had copied Mr Pidgeon into his email 14 March with the incident report and Mr Pidgeon did receive the disclosure in relation to the customer locking the dog and child in the car. However, the Claimant could give me no reason why this would be relevant to the employer. The Claimant was told that the reason for his dismissal was capability, but no other details were provided. Although the Claimant said that the Respondent did not want to deal with the issues he raised and that is why he was dismissed, the Claimant accepted that when he first raised the issue of his inability to carry out his work within 8 hours per day, and his difficulties using Ecosurve he received assistance from his manager who arranged training that dealt with all the matters he raised in his email.[62]I conclude that the Respondent’s response indicates a motivation to assist the Claimant in doing his role not getting rid of the Claimant for raising concerns. As the only disclosure that the Claimant made was in respect of being left with a vulnerable child and the customer locking the vulnerable child in the car with the dog, the Claimant has not proved to me that the principal reason for Mr Pidgeon dismissing him had anything to do with that disclosure. There was no reason provided why the employer would be expected to do anything about this disclosure and there was no reason provided to me why Mr Pidgeon would be motivated to dismiss the Claimant for this disclosure.[63]I considered the closeness in time of the Claimant raising his concerns and his dismissal, but I conclude that the closeness in time was not determinative where the Claimant had raised earlier issues, and they had been dealt with by his manager.[64]The Claimant mentioned the Respondent not following its own whistleblowing procedures in his submissions, but the failure to follow the whistleblowing procedures in of itself was not a consideration relevant to whether the principal reason for Mr Pidgeon to dismiss the Claimant was his protected disclosures. The Claimant did not give any evidence on whether the failure to follow the procedure indicated that Mr Pidgeon was motivated to dismiss him because of his protected disclosure and so I do not conclude that it did. The Claimant could not give a reason why the employer would be affected by this disclosure. The burden is on the Claimant to prove that the principal reason for his dismissal was his protected disclosure. The Claimant has not done this. In the circumstances the Claimant’s claim is not well founded and the claim fails. Approved by RECONSIDERATION[1]I have undertaken preliminary consideration of the Claimant's application for reconsideration. The Claimant application in his email dated 3 February 2025 to the Employment Tribunal but not to the Respondent appears to be based upon an argument that the Claimant mislabelled his claim whistleblowing when it should have been labelled health and safety negligence. The Claimant’s application came within 14 days of the judgment but before the judgment and written reasons were sent to the parties on 21 February 202.
The law
[2]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 68 of The Employment Tribunal Procedure Rules 2024 (‘ETPR’)).[3]Rule 70(1) ETPR empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[4]The importance of finality was expressed succinctly by Mrs Justice Simler sitting as President in the EAT decision of Liddington v 2Gether NHS Foundation Trust EAT/0002/16. Simler P said in paragraph 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.”[5]In common with all powers under the ETPR, preliminary consideration under rule 70(1) must be conducted in accordance with the overriding objective as set out in rule 3, namely, to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. The Application[6]A claim for health and safety negligence is not a claim that the Employment Tribunal has jurisdiction to hear. The Employment Tribunals do not hear negligence claims. In any event such an argument was not put before the Employment Tribunal and the Claimant therefore already had an opportunity to argue then what he wants to argue now.[7]The basis of the Claimant’s application is an attempt to re-open the case to argue it from a different perspective, in that sense it represents a “second bite at the cherry” which undermines the principle of finality. Such attempts have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing. A Tribunal will not reconsider just because the Claimant wishes it had gone in his favour. Conclusion[8]Having considered all the points made by the Claimant I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The matters raised in the application were matters that could have been raised at the hearing, some of which were, but from a whistleblowing perspective and were considered. I have not dealt with any procedural flaws of the Claimant’s application namely that the application was not sent to the Respondent. In any event the application for reconsideration is refused. Approved by:
The Relevant Law
[1]I have undertaken a preliminary consideration of the Claimant's second application for reconsideration. The Claimant’s application in his email dated 29 March 2025 to the Employment Tribunal appears to be based upon an argument that the Claimant mislabelled his claim under section 103A Employment Rights Act 1996 (protected disclosure) when it should have been labelled under section 100 Employment Rights Act 1996 (health and safety dismissal) and that the Employment Tribunal erroneously put the burden of proving that the dismissal was because of a protected disclosure on the Claimant. The Claimant’s application came within 14 days of the reconsideration judgment.
The Law
[2]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 68 of The Employment Tribunal Procedure Rules 2024 (‘ETPR’)).[3]Rule 70(1) ETPR empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[4]The importance of finality was expressed succinctly by Mrs Justice Simler sitting as President in the EAT decision of Liddington v 2Gether NHS Foundation Trust EAT/0002/16. Simler P said in paragraph 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.”[5]In common with all powers under the ETPR, preliminary consideration under rule 70(1) must be conducted in accordance with the overriding objective as set out in rule 3, namely, to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. The Application[6]The first ground of the application is based upon exactly the same premise as the previous application. The Claimant is correct that when a litigant in person mislabels a claim that the Employment Tribunal should look to the substance of the claim rather than the label. However, there is no reason to believe that the claim was mislabelled in any event. Section 100 of the Employment Rights Act 1996 does not fit the facts as found by the Employment Tribunal and there was no reason for the Employment Tribunal to have facts that would have fit the facts applicable to the Claimant, not least because the Claimant did not assert he was a health and safety representative. It is not for the Employment Tribunal to find claims for the Claimant, the Employment Tribunal does not represent the Claimant. The Claimant asserted a claim of whistleblowing, the facts if proved could have amounted to whistleblowing. However the Employment Tribunal did not find facts that did prove that the Claimant had been dismissed because of whistleblowing.[7]The second ground of the application is a legal argument that the Claimant makes in relation to section 98 of the Employment Rights Act 1996. As a legal argument it is more appropriately directed at the Employment Appeal Tribunal (which I understand that the Claimant intends to make to the Employment Appeal Tribunal in any event). But dealt with simply, it was the Claimant who asserted that the reason for his dismissal was by reason of protected disclosure not the Respondent and so the Claimant’s argument does not apply to his claim.[8]The basis of the Claimant’s application is an attempt to re-open the case to argue it from a different perspective, in that sense it represents a “second bite at the cherry” which undermines the principle of finality. Such attempts have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing. A Tribunal will not reconsider just because the Claimant wishes it had gone in his favour.
Conclusion
[9]Having considered all the points made by the Claimant I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The application for reconsideration is therefore refused. Approved by: