Mr J Wisniewski v Volution Ventilation UK Ltd: 3310853/2019

EMPLOYMENT TRIBUNALS

Case No 3310853/2019

Between

Mr J WisniewskiClaimant

Volution Ventilation UK Limited RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Anstis

Not represented for claimant

Ms A Reindorf (instructed by counsel) for respondent

Date 24 January 2022

JUDGMENT

Employment Tribunals Rules of Procedure 2013 – Rule 38

[1]The unanimous decision of the tribunal is that the dismissal of the claimant’s complaints of race discrimination or harassment for noncompliance with an unless order dated 6 July 2020, confirmed in a letter dated 19 November 2020, is set aside pursuant to rule 38(2).

[2]Case management orders for the future conduct of the case have been sent separately.

REASONS

[1]The respondent designs, manufactures and distributes ventilation and fan equipment. The claimant was employed as a mouldshop operative for the respondent from 10 January 2005 until 31 December 2018.

[2]The claim form was presented on 10 December 2018 after Acas early conciliation from 5 November 2018 to 26 November 2018. The claimant Page 1 of 10 made complaints of unfair dismissal, disability discrimination, race discrimination, age discrimination and unauthorised deduction from wages.

[3]The respondent presented its response on 28 March 2019.

[4]The claimant’s complaints were clarified at a private preliminary hearing on 2 July 2019. A public preliminary hearing then took place on 6 July 2020 at which Employment Judge Anstis considered whether the claimant was a disabled person pursuant to section 6 of the Equality Act 2010, and concluded that the claimant was not a disabled person at the relevant time. Judge Anstis also considered an application by the respondent to strike out the claimant’s complaints. He struck out the claimant’s complaints other than three complaints of race discrimination or harassment, and two complaints of age discrimination or harassment.

[5]Further information was required about the claimant’s complaints of race discrimination or harassment. Judge Anstis made an unless order which required the claimant to provide further information about these complaints by 23 August 2020. The tribunal wrote to the parties on 19 November 2020 to confirm that the complaints of race discrimination were dismissed as the unless order had not been complied with. On 24 and 25 November 2020 a written application was made on behalf of the claimant to have the dismissal set aside. Unfortunately, that application had not been referred to a judge by the time of the full merits hearing before us. This reserved judgment deals with that application. We apologise to the parties on behalf of the tribunal service for the administrative errors which have resulted in this application being outstanding by the time of the full merits hearing. Hearing on 24 to 26 May 2021

[6]The full merits hearing took place by video (CVP) on 24 and 25 May 2021. There was a deliberation day in chambers on 26 May 2021 and a further deliberation discussion on 28 May 2021. The claimant was represented by his son, Mr Paul Wisniewski. In this judgment we refer to Mr Paul Wisniewski as Mr Wisniewski and to Mr Jan Wisniewski as the claimant.

[7]Polish interpreters attended the hearing on both 24 and 25 May 2021, although there were problems with the video links and they arrived late. On 24 May 2021 we took some time for reading while we waited for the interpreter to arrive. The interpreter Ms Walaszek was present by 11.30 when we restarted the hearing. Mr Wisniewski chose to speak in English and did not require the interpreter, but Polish interpretation of the hearing took place for the remainder of the day as the claimant was present in the room with Mr Wisniewski and required translation. On 25 May 2021 the interpreter was Ms Joseph. She was not present at 10.00am. The claimant was not present on this day, and Ms Joseph was only required to interpret for the claimant’s witnesses Mr Rosinski and Mr Kitka when they were giving their evidence. We heard evidence from the respondent’s witnesses first and Ms Joseph was able to join at 10.30am.

[8]On the first day of the hearing, Mr Wisniewski said that he wanted to make the tribunal aware of situations constituting perversion of the course of Page 2 of 10 justice. He also raised these issues in emails to the tribunal on 19 May 2021. Mr Wisniewski said that one of the claimant’s witnesses, Mr Rosinski, had been telephoned by someone in August 2020 who introduced themselves as an employee from the legal office and asked him to confirm his identify. He was approached by another lawyer in May 2021. Mr Wisniewski said that he thought this contact was from the respondent’s lawyers. Further, Mr Wisniewski himself had received two text messages from drug dealers in May and June 2020 after providing his telephone number for the purposes of this case. Finally, Mr Wisniewski said that the respondent had made political donations, that the ultimate owner of the group of companies which included the respondent was George Soros and that David Cameron was involved in secret lobbying. He said that there were potentially political pressures involved in this case and that these might have led to pressure on Employment Judge Anstis at the preliminary hearing.

[9]The respondent’s counsel said that neither she nor the respondent’s solicitors had contacted Mr Rosinski or had any involvement in the matters raised. She said the contact Mr Rosinski had received looked like it could be a webchat scam. She said she could not comment further.

[10]We considered Mr Wisniewski’s comments carefully. We accepted what we had been told by the respondent’s counsel that the contact with Mr Rosinski was not from the respondent’s lawyers and that they do not know anything further about these matters. There was nothing to suggest that Employment Judge Anstis was under any pressure at the preliminary hearing or that there was any other issue with his decision. There was nothing in what Mr Wisniewski had said that suggested there could not be a fair trial in this case. Issues for determination

[11]On the first day of the hearing, we identified with the parties the issues for determination by us. These were the two complaints of direct age discrimination or age-related harassment recorded in the case management order of 6 July 2020.

[12]Mr Wisniewski raised the application to set aside the dismissal of the race discrimination or harassment complaints. It was apparent that the application had not been addressed by the tribunal and that it remained outstanding.

[13]We discussed with the parties how we should proceed. The respondent had prepared their case on the age discrimination complaints only, those being the only complaints before the tribunal. We decided that we should proceed to hear the complaints of age discrimination. We took into account when reaching this decision that the claimant has a progressive condition that affects his memory, and that there were 8 witnesses at the hearing and ready to give their evidence (three witnesses for the claimant, in addition to the claimant himself and Mr Wisniewski, and three witnesses for the respondent). We decided that we should also hear the parties’ submissions on the outstanding application in respect of the complaints of race Page 3 of 10 discrimination or harassment, and that if the application succeeded, another hearing would be required for those complaints.

[14]After hearing evidence and submissions on the age discrimination complaints, and submissions on the application to set aside the dismissal of the race discrimination complaints, we reserved our judgment. This judgment deals only with the application to set aside dismissal of the race discrimination complaint. Submissions by the parties

[15]The application on behalf of the claimant to set aside the dismissal judgment was set out in the written applications made by Mr Wisniewski and emailed to the tribunal on 24 and 25 November 2020, and in oral submissions made at the hearing before us. Mr Wisniewski said that there had been compliance with the unless order. He said that proper particulars of the complaints of race discrimination had been provided on 21 and 22 August 2020, and that an application to set aside the dismissal had been made on 24 November 2020. He said that it was in the interests of justice to set the dismissal aside.

[16]The respondent’s counsel said that it was not in the interests of justice to set aside the dismissal. The claimant had been given many chances to particularise his claims. Particulars of the race complaints had been provided on 21 and 22 August 2020 but these were insufficient and there was still material non-compliance with the unless order. The continued lack of clarity had been emphasised by the respondent in its supplementary amended grounds of resistance served on 18 September 2020. In addition, the respondent’s counsel said that the race discrimination complaints are significantly out of time. She said that it would not be in accordance with the overriding objective to set the dismissal aside, particularly considering the time and costs which would be required for another hearing.

The Law

[17]Rule 38 of the Employment Tribunal Rules of Procedure states: Unless orders 38.—(1) An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred. (2) A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations. Page 4 of 10 (3) Where a response is dismissed under this rule, the effect shall be as if no response had been presented, as set out in rule 21.

[18]Rule 38(2) is an express provision for an application to set aside a dismissal following non-compliance with an unless order. The process is separate from the process for reconsideration under rule 70 (Enamejewa v British Gas Trading Ltd EAT 0347/14).

[19]There are potentially three stages of consideration required in relation to an order under rule 38, each involving different legal tests (Wentworth-Wood v Maritime Transport Ltd EAT 0316/15). First, there is the decision whether to impose an unless order and if so in what terms. This is a decision to be taken in accordance with the overriding objective set out in rule 2. Secondly, there is the decision to give notice under rule 38(1) dismissing the claim or part of it. This requires the employment tribunal to form a view as to whether there has been material non-compliance with the order.

[20]When determining at this second stage whether there has been compliance with an unless order, the starting point is to consider the terms of the order itself and whether there has been non-compliance with the order in any material respect (Uwhubetine v NHS Commission Board England EAT 0264/18 and Marcan Shipping (London) Ltd v Kefalas

2007 1 WLR 1864

, CA). In particular the tribunal should consider whether the particulars given enable the other party to know the case it has to meet, or enable the tribunal to understand what is being asserted (Johnson v Oldham Metropolitan Borough Council EAT 0095/13).

[21]Thirdly (the stage which has been reached in this case), if the party concerned applies under rule 38(2), the employment tribunal will decide whether it is in the interests of justice to set the order aside. HHJ Richardson in Wentworth-Wood emphasised that: “This is not the same as asking whether it was in the interests of justice to make the Order in the first place. It is the stage of the procedure at which the Employment Tribunal considers relief against sanction, and it can take into account a wide range of factors, including the extent of non-compliance and the proportionality of imposing the sanction.” Chronology

[22]In order to consider the claimant’s application, we first considered the chronology of events. Page references are to the hearing bundle.

[23]At the preliminary hearing on 6 July 2020 the complaints of race discrimination were identified as complaints of direct race discrimination or racial harassment (with the claimant describing his race or ethnic origin as "European", and the surrounding circumstances being described at pages 13 and 14 of the claimant's particulars of claim) as follows:a. The claimant's work being "sabotaged" and as a result the claimant having to put in additional work to meet his targets. Page 5 of 10

b. The claimant and other European staff (including Grzegorz Rosinski) being required to work on 4-5 machines at the same time, whereas Asian workers were only required to work on 1-2 machines at the same time.

c. Being told (by Asian workers) that he 'stinks' and 'his food stinks'.

[24]At the hearing Employment Judge Anstis made an unless order requiring further particulars of those complaints to be provided within four weeks of the date of the order being sent to the parties. He set out what further particulars were required. The case management order was sent to the parties on 26 July 2020. This meant the date for compliance with the unless order by the claimant was 23 August 2020 (page 85).

[25]On 21 August 2020 Mr Wisniewski sent a 9 page email to the tribunal and the respondent headed ‘Voluntary presented additional information Particulars - Part 2 (Race Discrimination)’ (pages 87 to 95). On 22 August 2020 he emailed the tribunal and the respondent again (page 96 to 105). This second email included a different version of the further particulars. It said ‘(new version!)’ in the subject line of the email and ‘new version! (more info)’ in the heading.

[26]Employment Judge Anstis had given the respondent leave to amend its response to address the claims as clarified and any further particulars provided by the claimant (page 85). Any such amended response was to be provided by 20 September 2020. The respondent sent a supplementary amended grounds of resistance on 18 September 2020 (page 106). The document has an introductory note which says: “These supplementary Grounds of Resistance are provided by the Respondent to respond, in so far as it is able to do so, to the Further Particulars provided on behalf of the Claimant by email dated 22 August 2020. In general, the Respondent considers that its ability meaningfully to respond has been prejudiced by the continuing lack of specific detail in respect of the three allegations of race discrimination/harassment and by the passage of time. The Claimant’s complaints appear to date back many years (covering the period 2005 to 2017) and, as such, his ET1/Details of Claim (as now amended) was presented outside the prescribed time limit.”

[27]On 19 November 2020 a letter was sent to the parties on the direction of Employment Judge Anstis, confirming the dismissal of the complaints of race discrimination by operation of the unless order, following noncompliance by the claimant (page 115). There was no explanation in the tribunal’s letter as to how the further particulars sent on 21 and 22 August 2020 failed to comply in any material respect with the unless order. Employment Judge Hawksworth examined the tribunal file and found that at the time that Employment Judge Anstis gave his direction, neither of the claimant’s emails of 21 and 22 August 2020 nor the respondent’s email enclosing its amended grounds of resistance on 18 September 2020 had been printed and put on the tribunal file. Page 6 of 10

[28]On 24 November 2020 Mr Wisniewski emailed the tribunal and the respondent with an application to set aside the dismissal (page 122). He said he did not understand why the race discrimination complaints had been dismissed, as further particulars had been provided (page 123). The following day he sent another email (page 116) which included the application and said again that further information about the complaint of race discrimination had been provided (page 119).

[29]Unfortunately, neither of Mr Wisniewski’s emails of 24 or 25 November 2020 were put on the tribunal file and neither were referred to a judge for consideration. As a result, by the time the hearing before us started on 24 May 2021, this application remained outstanding.

Conclusions

[30]Mr Wisniewski made a valid application for the dismissal to be set aside, within the time frame required in rule 38(2). To consider that application we have to consider whether it is in the interests of justice to set aside the order which resulted in the dismissal of the claimant’s complaints of race discrimination or harassment.

[31]We note first that there is no requirement in rule 38 for the decision under rule 38(2) to be taken by the same tribunal or the same employment judge that took the decision under rule 38(1). That is not the same as the procedure for reconsideration of judgments in rules 70 to 73, which requires that, where practicable, reconsideration should be by the employment judge or the full tribunal which made the original decision. Rule 38 contains a separate procedure to the rule 70 procedure. If the rules required that decisions under rule 38(2) should be made by the same judge or tribunal that made the decisions under rule 38(1), we would have expected the rule to say so, and it does not. We have concluded that we are able to consider the application to set aside the order of Employment Judge Anstis. In case we are wrong about this and rule 72(3) applies here, Regional Employment Judge Foxwell has, for reasons of practicability, appointed us to consider the application.

[32]Next, we considered the chronology of events relating to the unless order as found by us. The further particulars provided on behalf of the claimant complied with the unless order in terms of the time frame. They were sent on 21 and 22 August 2020, within the four week period for compliance as ordered by Employment Judge Anstis which expired on 23 August 2020.

[33]We have concluded that when Employment Judge Anstis gave his direction that the claimant’s complaints of race discrimination or harassment should be dismissed for non-compliance with the unless order, he was not aware that the claimant had taken steps to comply with the order. He was not aware that further particulars had been provided on behalf of the claimant on 21 and 22 August 2020. We reach the conclusion that this is most likely to have been the position firstly because at the time of Judge Anstis’s direction neither of the claimant’s emails with the particulars nor the respondent’s amended response which referred to them were on the tribunal file. Secondly, if Judge Anstis had been aware that further Page 7 of 10 particulars had been provided and had then gone on to decide that they did not comply with the unless order in some material respect, we would have expected his decision that written notice confirming the dismissal should be issued to have explained why the particulars were deficient and in what respects. However, Employment Judge Anstis’s decision as recorded in the tribunal’s letter of 19 November 2020 merely said that the unless order was not complied with.

[34]We have concluded therefore that a decision has been taken to confirm dismissal of the race discrimination/harassment complaints by the automatic operation of the unless order in the incorrect belief that no particulars at all have been provided, when in fact the claimant had taken steps to comply. As a result of an administrative error by the tribunal service, no consideration had been given before confirming dismissal of the race discrimination complaints to whether the particulars of 21 and 22 August 2020 materially complied with the unless order.

[35]We have gone on to consider that question. It is relevant to our consideration at the third stage of rule 38 as to whether it is in the interests of justice to set aside the order. If the further particulars of the race discrimination or harassment complaints fail in any material respect to comply with the unless order, we might then conclude that the second stage rule 38 decision to dismiss the complaints would have been the same even if the judge had seen the particulars which were provided by the claimant. In those circumstances, we might conclude that it would not be in the interests of justice to set aside the rule 38 order.

[36]We have started by considering the terms of the order itself and the particulars provided on behalf of the claimant to assess the extent to which there has been non-compliance with the order and whether that noncompliance is material.

[37]In respect of the first complaint (sabotage), the particulars describe the sabotage as i) hiding the claimant’s tools, ii) putting faulty elements in his boxes, iii) dumping boxes with unfinished elements on the claimant and iv) telling lies about his behaviour. The claimant’s supervisor and manager are named. ‘Other colleagues’ are referred to but they are not named. The treatment is said to have taken place during 2005 to 2014. Marek Wisniewski is said to have witnessed the sabotage.

[38]The respondent’s counsel submitted that these further particulars were deficient because:38.1 some of the colleagues were unnamed;

38.2 no particulars were given about what the lies were;

38.3 the order had required the claimant to specify the month and year of the treatment but no months were given.

[39]In respect of the second complaint (overwork), the claimant says the other European workers who were overworked were Marek Wisniewski, Steven and Ralph (no surnames given). He says that the Asian workers who were Page 8 of 10 treated better were ‘All Asian employees’ of the respondent. He says the machines operated by Asian employees were slower, and Europeans were given harder to operate machines. A statement by Grzegorz Rosinski is enclosed with the particulars and this includes more detail about the different types of machines (page 104).

[40]The respondent’s counsel said that these further particulars were deficient because:40.1 they did not name the Asian employees’ who were treated better;

40.2 they do not provide information about which machines were worked on.

[41]In respect of the third complaint (comments that the claimant and his food stinks), the particulars do not give the name of any employee who made these comments. The particulars explain why it is difficult for the claimant to provide the names of the employees who made these comments, saying for example that rotas did not include full names, name tags were not worn, and there was a language barrier. The particulars say the comments took place a few times during the years 2005 to 2017.

[42]The respondent’s counsel says that the particulars are deficient in respect of the third complaint because they do not say who is alleged to have made the comments, and again they do not specify the month and year in which the comments happened.

[43]Another factor in the assessment of whether particulars comply with an unless order is whether the particulars given enable the other party to know the case it has to meet, or enable the tribunal to understand what is being asserted.

[44]In this case, the respondent served supplementary amended grounds of resistance on 18 September 2020 (it was given leave, but not ordered to do so). In the amended grounds of resistance, the respondent says that its ability meaningfully to respond has been prejudiced by the continuing lack of specific detail in respect of the three allegations of race discrimination or harassment and by the passage of time. However, the respondent does provide its response to the complaints of race discrimination and harassment and the particulars of 22 August 2020, summarising its understanding of the three complaints. It provides a detailed response to the complaints about sabotage and overwork. It says that it cannot plead a proper response to the allegation about the comments that the claimant and his food stinks because of the lack of any specific detail and the passage of time.

[45]Having carried out this assessment of the information provided on behalf of the claimant in response to the unless order, we have concluded that there is no material non-compliance with the order. We have taken into account in reaching this conclusion the fact that the claimant is being represented by his son who is not legally qualified. The main aspects of non-compliance or ‘gaps’ in the information provided are i) the failure to provide the months as well as years in giving the dates when the matters took place and ii) the Page 9 of 10 failure to provide names in relation to the third complaint. However, in a case where allegations span a number of years, it may not always be possible to identify dates with specificity. Further, the claimant has explained why it is not possible for him to provide some names. He has also explained that there are particular issues with memory in his case. The lack of specificity of dates and names in some complaints may be a matter to be taken into account by the tribunal when considering whether the claimant can make out his case, but does not in our view amount to material noncompliance with the unless order.

[46]We have also taken into account that the respondent has been able to reply in some detail to the complaints of race discrimination and harassment. We appreciate that the respondent was doing its best to reply to particulars which it made clear it still regarded as deficient. However, it has been able to provide a detailed response to the first and second complaints. Overall, even in respect of the third complaint, which is the least particularised, the respondent and the tribunal are able to understand what is being asserted. Finally, we have taken into account the proportionality of imposing the sanction of dismissal of the complaint, given the extent of non-compliance with the order.

[47]We have concluded that the further particulars provided on behalf of the claimant do not fail to comply with the unless order in any material respect. We do not consider that the second stage rule 38 decision to dismiss the complaints would have been the same even if the judge had seen the particulars which were provided by the claimant.

[48]For these reasons, we have concluded that it is in the interests of justice that the order and the dismissal of the race discrimination/harassment complaints should be set aside under rule 38(2).

Findings of fact

[49]We accept the evidence of Ms Akinmarin that she did not use the words alleged by the claimant about retirement, and that she did not discuss retirement or finishing work at all. We accept this because her evidence was consistent, and it was supported by Mr Purewal who was with her at all times throughout the meeting. We think it is more likely that the claimant was thinking of the comment about retirement which he had made in his discussion with Mr Purewall. He had made a similar comment in the earlier meeting in March 2018.

[50]On 11 June 2018 the claimant emailed the respondent about his sick pay. Mr Wisniewski said this was a grievance. In the email the claimant said that sometimes he was treated by management like a subhuman and that he felt overexploited and underpaid. He said that he was left with no choice but to take legal action against the company. The email does not mention discrimination (page 657). We do not accept that, as Mr Wisniewski suggested, the reference to being treated like a subhuman was a complaint of race discrimination. The claimant did not submit any grievance or other complaint about race discrimination.

[51]The claimant tried to present an employment tribunal complaint on 25 October 2018 but his claim was rejected on 21 November 2018. There had been no Acas early conciliation before the claim was presented, although Mr Wisniewski did have some email correspondence with Acas on about 25 October 2018.

[52]The claimant notified Acas for early conciliation on 5 November 2018. The Acas early conciliation certificate was issued on 26 November 2018 (page A22). The claimant’s second employment tribunal claim was sent by post to the employment tribunal on 7 December 2018 and recorded as received by the tribunal on 10 December 2018 (page A8). Page 8 of 17

[53]In the course of preparing for the hearing of the claim, the respondent’s HR director checked the respondent’s employment records. She also contacted a former operations director and 16 potential witnesses. She has not been able to identify any employee who can assist with recalling any of the events described in the claimant’s further information about his complaints of race discrimination. The claimant’s supervisor on the night shift, the alleged main perpetrator in the claimant’s complaints of race discrimination, left the respondent’s employment on 3 December 2015. Ms Hawkins has taken steps to contact him for the purposes of these proceedings but without success.

[54]In respect of the claimant’s witnesses, Mr Rosinski and Mr Kitka did not work in the department or on the shifts which the claimant worked on. Mr Marek Wisniewski was signed off work for sickness after 13 April 2015. The Law Direct discrimination because of race and/or age

The Law

[55]Race and age are protected characteristics under section 4 of the Equality Act 2010.

[56]Section 13 of the Equality Act provides: “(1) A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.” Harassment related to race or age

[57]Under section 26 of the Equality Act, a person(a) (A) harasses another

(b) (B) if “a) A engages in unwanted conduct related to a relevant protected characteristic, and b) the conduct has the purpose or effect of – i) violating B’s dignity, or ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[58]In deciding whether conduct has the effect referred to, the tribunal must take into account: “a) the perception of B; b) the other circumstances of the case; Page 9 of 17 c) whether it is reasonable for the conduct to have that effect.”

[59]This means there is both a subjective element (the effect on the claimant) and an objective element (whether it was reasonable for the conduct to have that effect on the claimant). Time limit

[60]The time limit for bringing a complaint of discrimination or harassment is set out in section 123 of the Equality Act. A complaint may not be brought after the end of: “(a) the period of three months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable”.

[61]Conduct extending over a period (sometimes called a ‘continuing act’) is to be treated as done at the end of the period (section 123(3)).

[62]When calculating the end date of the period of three months, time spent in a period of Acas early conciliation is not counted: “In working out when the time limit set by section 123(1)(a) or 129(3) or (4) expires the period beginning with the day after Day A [the day on which the claimant contacts Acas for early conciliation] and ending with Day B [the day on which the claimant receives the early conciliation certificate] is not to be counted” (section 140B of the Equality Act).

[63]Employment tribunals have a wide discretion to extend time under the ‘just and equitable’ test in section 123(1)(b) and may take into account all relevant factors (Hutchinson v Westward Television Ltd

1977 ICR 279

(EAT)). However, ‘there is no presumption that the tribunal should [extend time] unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule’ (Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

, CA). This does not mean that exceptional circumstances are required; the test is whether an extension of time is just and equitable. Burden of proof

[64]Sections 136(2) and (3) of the Equality Act says: "(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) This does not apply if A shows that A did not contravene the provision." Page 10 of 17

[65]This means that if the claimant is able to prove facts from which the tribunal could decide that there has been unlawful discrimination, the burden of proof shifts to the respondent to satisfy the tribunal that there has not been unlawful discrimination.

Conclusions

[66]We have applied these legal principles to our findings of fact and have reached the following conclusions. Direct race discrimination or harassment

[67]The three complaints of race discrimination are put as direct race discrimination or alternatively racial harassment. We have to consider whether these three complaints were presented within the time limits set out in the Equality Act 2010.

[68]We have started by considering the basis of each of the three complaints of race discrimination, and when the treatment complained of occurred.

[69]First, the claimant said his work was sabotaged and as a result he had to put in additional work to meet his targets. In the further information he provided in August 2021 the claimant said the sabotage was i) hiding his tools, ii) putting faulty elements in his boxes, iii) dumping boxes with unfinished elements on him and iv) telling lies about his behaviour. The claimant says this was conduct by his supervisor and manager (both of whom are named) and ‘other colleagues’ (who are not named). Mr Marek Wisniewski is said to have witnessed the sabotage (pages 97-99).

[70]This treatment is said to have taken place during 2005 to 2014, when the claimant was working on night shifts (page 99).

[71]The claimant’s second complaint is that he and other European staff (including Mr Rosinski) were required to work on 4-5 machines at the same time, whereas Asian workers were only required to work on 1-2 machines at the same time. In his further information of August 2021, the claimant said the other European workers who were overworked were Mr Marek Wisniewski, Steven and Ralph (no surnames given). He says that the Asian workers who were treated better were ‘all Asian employees’ of the respondent (no names given). He says the machines operated by Asian employees were slower, and Europeans were given harder to operate machines (page 99 to 101).

[72]The claimant says this treatment occurred on the night shift and continued during day shifts as well (page 101). This treatment must have ended on 30 April 2018 at the latest, as that is the last day the claimant was at work before his long-term sickness absence and the termination of his employment.

[73]The claimant’s third complaint is that he was told (by Asian workers) that he 'stinks' and 'his food stinks'. The claimant has not been able to provide information about who told him this. He says that it is difficult to provide the names of the employees who made these comments, because rotas did not Page 11 of 17 include full names, name tags were not worn, and there was a language barrier (page 101 and 102).

[74]The claimant says these comments took place a few times during the years 2005 to 2017 (page 102).

[75]The time limit for presentation of a complaint of direct discrimination or harassment in section 123(1)(a) is three months less one day from the date of the act complained of. When the treatment complained of is conduct extending over a period, the three months starts from the end of the period.

[76]In the claimant’s case, the allegations cover long periods, dating back to 2005 in at least two of the complaints. For the purposes of considering when the time limit would have expired, we have considered the end of the threemonth time period, assuming that there was conduct extending over the period complained about. This means that:76.1 For the first complaint, the claimant’s last day of working on night shifts was 30 June 2014 at the latest. The period of three months from that date ended on 29 September 2014;

76.2 For the second complaint, the treatment complained of took place no later than 30 April 2018 as that was the last day when the claimant was working. The three-month period from then ended on 29 July 2018.

76.3 For the third complaint, the treatment took place on 31 December 2017 at the latest. The period of three months from then ended on 30 March 2018.

[77]The time limit under section 123(1)(a) for the complaints of race discrimination therefore expired on 29 September 2014, 30 March 2018 and 29 July 2018.

[78]There is no extension of time arising from the period of Acas early conciliation. Section 140B works by ‘not counting’ a period of early conciliation which falls within the three month period under section 123(1)(a). It does not work by always adding an automatic extension equal to the period of early conciliation at the end of the original three month period. This is an important distinction. In the claimant’s case, Acas early conciliation did not start until after the time limit under section 123(1)(a) had expired. The early conciliation took place wholly outside the period of three months beginning with the date of the conduct complained of. There was therefore no period of early conciliation to discount when calculating the date of expiry of three month period in any of the claimant’s race discrimination complaints.

[79]Therefore, when the claim was presented on 10 December 2018, it was outside the three month time limit in section 123(1)(a) in all of the claimant’s three complaints of race discrimination. Page 12 of 17

[80]That means that we have to consider whether the claim was presented within such other period as we think just and equitable under section 123(1)(b).

[81]To do that, we have started by looking at the length of the delay and the reasons for it. In terms of the length of the delay, the first complaint was presented over 4 years later than expiry of the three month period, the second over 8 months later, and the third over 4 months later. These are all lengthy delays in the context of a complaint which has a three month time limit.

[82]In terms of the reasons for the delay, Mr Wisniewski set out some reasons in his witness statement sent on 2 August 2021. The statement is lengthy and not always easy to follow. We understand the reasons given by Mr Wisniewski’s for the delay to include the following:82.1 The respondent was ‘playing on time’, deliberately ignoring the company’s internal procedures and Acas code of procedures (page B75);

82.2 The claimant had given up reacting and trying to change things, because the treatment had gone on for so long and he was afraid of losing his job (page B78).

[83]The first of these reasons does not explain the delay. We have found that the claimant did not make any internal complaint or grievance about race discrimination, and so it is not clear what internal procedures the claimant says the respondent was ignoring or what steps the respondent should have been taking under the Acas Code of Practice. Mr Wisniewski was first in touch with Acas on about 25 October 2021 and then notified Acas for early conciliation on 5 November 2021. Both of these dates were after the expiry of the three month time limit in all the three complaints. In other words, the three month period had already expired by the time Mr Wisniewski contacted Acas, so any delays by the respondent in responding to Acas cannot have been the reason for the delay in presenting the race discrimination complaints.

[84]The second reason given is that the effect of the respondent’s treatment of the claimant was such that he decided not to challenge the respondent. This explains why the claimant had decided not to pursue a claim (or investigate the possibility of pursuing a claim) but not why or when his position changed such that he decided to present a claim.

[85]We have gone on to consider the related question of the claimant’s knowledge about his rights and how quickly he acted once he knew about the possibility of making a claim. The claimant was aware that he had a right to pursue legal action, as he mentioned this in his email of 11 June 2018. He was aware from at least 25 October 2018 that he had a right to present an employment tribunal claim, as he attempted to present a claim on that date. The claimant knew on 21 November 2018 that his first claim had been rejected and from 5 November 2018 he clearly had concerns about whether Page 13 of 17 he had followed the correct procedure, because he started Acas early conciliation on that date. His claim was presented on 10 December 2018.

[86]We have taken into account what the claimant says about the effect of the treatment, his ill health and the fact that he is being represented by his son who is not legally qualified. However, given the long delays, we do not think that the claimant took action promptly after June 2018 when he was aware of the possibility of taking legal action. Four months passed before he took steps to start an employment tribunal claim. There was a further delay in taking prompt action after 5 November 2018 when he was aware that his first claim may not be accepted. It was a further month before the claimant sent his second claim form on 7 December 2018.

[87]Having considered the length of and reasons for the delay, we have weighed up (on the one hand) the prejudice to the respondent if we extend time and (on the other) the prejudice to the claimant if we do not extend time.

[88]We accept that if the race discrimination complaints are allowed to proceed, the respondent will be prejudiced because:88.1 the passage of time since the treatment complained of makes it difficult for the respondent to respond to the claimant’s complaints. The cogency of the evidence is very likely to be affected by the delay in presenting the complaint, particularly where, as here, the complaints lack specificity in relation to dates of incidents and name;

88.2 despite taking reasonable steps to do so, the respondent has not been able to identify any employee who can assist with recalling any of the events described in the claimant’s further information. The alleged main perpetrator, the claimant’s supervisor on the night shift, left the respondent’s employment on 3 December 2015 and the respondent has been unable to contact him.

[89]We accept that these factors will lead to prejudice to the respondent if the claimant’s complaints of race discrimination are allowed to proceed out of time. The passage of time and inability to identify appropriate witnesses would significantly affect the cogency of the evidence and the respondent’s ability to respond to the complaints.

[90]Against the prejudice to the respondent, we have to weigh up the prejudice to the claimant if the complaints of race discrimination are not allowed to proceed. If the claimant is not able to pursue his complaints of race discrimination, the prejudice to him will be greater the stronger the merits of those complaints. We have concluded that the merits of the claimant’s race discrimination complaints are poor, for reasons which also relate to the passage of time, and that consequently there is little prejudice to him from not being able to pursue these complaints, for the following reasons:90.1 even after two preliminary hearings to clarify the complaints and after the provision of further information in response to an unless order, the claimant has been unable to set out in his claim or his further Page 14 of 17 information specific incidents, dates of the alleged treatment and the names or full names of individuals involved;

90.2 the claimant has a progressive condition which affects his memory. Mr Wisniewski said in the preliminary hearing on 6 July 2020 that he doubted whether the claimant would be well enough to give evidence. The claimant was not well enough to be cross-examined in relation to his age discrimination complaints in May 2021. It seems unlikely that he will be able to do so in relation to his race discrimination complaints;

90.3 there is little documentary evidence to support the claimant’s complaints of race discrimination. The handwritten notes from 2018, 2019 and 2020 largely post-date the period complained about, lack specificity and would be likely to be given little weight if it were not possible to test the evidence in cross-examination;

90.4 the evidence of the witnesses relied on by the claimant is very unlikely to support these complaints because two of the witnesses (Mr Rosinski and Mr Kitka) did not work in the department or on the shifts which the claimant worked on. Mr Marek Wisniewski was not at work after 13 April 2015 and so could not give any evidence of any relevant events after that date.

[91]Having considered the length of the delay and the reasons for it, and weighed up the prejudice to the respondent from extending time with the prejudice to the claimant of not extending time, we have decided that it is not just and equitable to extend time in this case. The prejudice to the respondent from allowing the complaints to proceed outweighs the prejudice to the claimant from not allowing them to proceed. Therefore, we do not consider it to be just and equitable to extend time for the complaints of race discrimination.

[92]This means that the tribunal does not have jurisdiction to consider the complaints of direct race discrimination or harassment. Age discrimination/harassment

[93]The treatment complained of by the claimant in the complaints of direct age discrimination or harassment because of age are the written warning dated 28 March 2018 which he was given for absence and lateness, and the comment by Ms Akinmarin in May 2018 that he should not be working and ‘should be retired by now’.

[94]In the direct age discrimination complaint, we have to consider whether there is evidence from which we could conclude that the issuing of the written warning was less favourable treatment because of age. The claimant relies on the fact that his birthday was in mid-March and he turned 65 shortly before he was asked to attend the meeting to discuss absence and lateness.

[95]Other than this timing, there is no evidence to suggest that the written warning was because of the claimant’s age. No one commented on the Page 15 of 17 claimant’s age or his birthday. Mr Purewal was not aware of the claimant’s birthday or his age. Ms Akinmarin had access to the claimant’s date of birth in HR records, but there was no evidence that she accessed those records, and she was not aware of his birthday or his age at the time she sent the letter.

[96]There was no evidence before us of an actual comparator being treated any differently to the claimant. We have accepted the evidence of Ms Hawkins that there was no evidence of another employee with absence levels comparable to the claimant in 2017 to 2018. There was no evidence from which we could conclude that a hypothetical comparator with similar absence levels would have been treated any differently to the claimant.

[97]The claimant has not proved evidence from which we could conclude that the written warning for absence was discrimination because of age. The timing of the claimant’s birthday and the issue of the warning was coincidental; the respondent’s managers who issued the warning were not aware of it. The burden of proof does not shift to the respondent.

[98]If we had decided that the burden of proof did shift to the respondent to prove that the issue of the written warning was not direct age discrimination, we would have accepted that the respondent has a non-discriminatory explanation for the issue of the written warning, namely the claimant’s absence record in the six months before the warning.

[99]We are satisfied that the decision to meet with the claimant to discuss his absence was prompted by the claimant being absent on 20 March 2018, for reasons he could not remember, and being an hour late on 21 March 2018, in circumstances where he had significant sickness absence in the previous six month period. It was not because of the claimant’s age or his recent birthday. The claimant had been unfit for work on 5 occasions between October 2017 to March 2018, amounting to 50 days sickness in total (including non-working days). That was a substantial number of occasions and days of sickness. It was reasonable for the respondent, after meeting with the claimant to discuss his absences, to issue a written warning. We accept that the claimant’s absence record is the reason why the respondent issued a written warning to the claimant. It was not because of the claimant’s age or age in general.

[100]This means that the claimant’s complaint of direct age discrimination in respect of the written warning fails and is dismissed.

[101]For similar reasons, the complaint of harassment does not succeed. The written warning was reasonable management action in the circumstances, and did not have the purpose required by section 26. If it had that effect on the clamiant, it was not objectively reasonable for it to have done.

[102]Further, there was no evidence from which we could conclude that the issuing of the warning was related to the claimant’s age, his recent birthday or to age in general. If there had been, we would have accepted the respondent’s explanation that the warning was issued because of the claimant’s absence record in the six months before the warning. Page 16 of 17

[103]The claimant’s second complaint of age discrimination was the alleged comment by Ms Akinmarin to the claimant in May 2018 that he should not be working and should be retired by now. We have found that Ms Akinmarin did not make this comment to the claimant or anything like it. We have found that it was the claimant who commented on finishing work and that he did so to Mr Purewal only, not Ms Akinmarin. The factual basis for this complaint is not made out and so it cannot succeed.

[104]The complaints of direct age discrimination and age-related harassment fail and are dismissed.

[105]This means that none of the claimant’s complaints identified at the hearing on 6 July 2020 as remaining for decision have succeeded and the claimant’s claim against the respondent is therefore dismissed.

Introduction

[1]The claimant’s complaints of direct race and age discrimination and race and age related harassment were dismissed in a reserved judgment with reasons dated 24 January 2022 which was sent to the parties on 28 January 2022.

[2]On 10 February 2022 the claimant’s representative made an application for reconsideration, within the required 14 days from the date on which the judgment was sent. The application was referred to me on 22 April 2022.

[3]In these reasons I have referred to the claimant’s representative as Paul Wisniewski as he says he does not have a title such as Mr. The rules on reconsideration

[4]I considered the application for reconsideration under rules 70 to 72 of the Employment Tribunal Rules of Procedure 2013. Rule 70 says that a judgment may be reconsidered where it is necessary in the interests of justice to do so. On reconsideration the original decision may be confirmed, varied or revoked.

[5]Rule 71 says that an application must be made in writing within 14 days of the date on which the written record of the original decision was sent to the parties.

[6]Rule 72 says: Page 1 of 4 “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…, the application shall be refused and the tribunal shall inform the parties of the refusal.”

[7]There is a public interest in the finality of litigation. This means that there must be some basis for reconsideration; the fact that a party disagrees with the findings made or conclusions reached is not sufficient. The reconsideration process is not an opportunity to provide further evidence which could have been provided at the time of the hearing.

[8]Rule 72(1) requires me to consider whether there is any reasonable prospect of the original decision being varied or revoked. I need to decide whether there is any reasonable prospect of a conclusion that variation or revocation of the original decision is necessary in the interests of justice. Paul Wisniewski’s application

[9]I have considered the application with this test in mind. The application covers 29 pages and is not always easy to follow. It has no page numbers and not every paragraph is numbered. For reasons of proportionality, in these reasons I have not dealt with every paragraph in the application, but I have explained my conclusions on each of the grounds advanced by Paul Wisniewski for reconsideration, as I understand them.

[10]Other documents were sent by Paul Wisniewski on 11 February 2022. These were notices to the EAT in five parts and a copy of a written case commentary. I have considered these documents as well as the reconsideration application. Paul Wisniewski sent other documents (new evidence) by including in emails links to a document upload system called wetransfer. It was not possible to consider these documents as the links had expired before the documents were downloaded.

[11]References in this judgment to paragraph numbers are to paragraphs in the reserved judgment sent to the parties on 28 January 2022, unless otherwise stated.

[12]Health and safety complaint: Paul Wisniewski says that the claim of 10 December 2018 included a complaint about ‘health and safety (whistleblowing)’ and he raises issues about plastic fumes and toxins at the claimant’s workplace. As paragraphs 2 to 5 explain, the issues for determination by us were recorded following the preliminary hearing of 6 July 2020. They did not include any whistleblowing complaint or any issues relating to fumes or toxins in the workplace. We discussed the issues in detail with the parties at the start of the hearing before us. We explained to Paul Wisniewski that health and safety issues would be taken into account if and as far as they were relevant to the issues we had to determine (paragraph 31). As is apparent from our judgment and reasons, the health Page 2 of 4 and safety issues were at most peripheral or contextual to the issues we had to determine.

[13]Documents: Paul Wisniewski also says that the respondent unlawfully restricted the evidence and refused to disclose employment records. Paul Wisniewski made an application for disclosure which was considered at the preliminary hearing on 8 April 2020 and refused. A further application by him for disclosure was considered by us and refused at the start of the hearing before us (paragraph 14).

[14]Corporate corruption: the application refers to corporate corruption in Reading. Again, this was considered by us at the start of the hearing on 24 May 2021. Our decision on this issue was set out in paragraphs 8 to 10 of our reserved judgment which was sent to the parties on 7 July 2021 (the judgment setting aside the dismissal of the race discrimination complaints).

[15]Findings of fact: Paul Wisniewski challenges the evidence of the respondent’s witnesses and the findings of fact which have been reached by the tribunal. At the hearing, the tribunal heard and weighed up the evidence and considered comments by the parties before making findings of fact on the balance of probabilities (that is, deciding what we think is most likely to have happened). The tribunal’s findings of fact and conclusions were set out in detail in the reserved judgment and reasons. None of the claimant’s assertions about the evidence or about the tribunal’s findings provide a basis for reconsideration of the judgment.

[16]Complaints of race discrimination/harassment: Paul Wisniewski says that a letter sent to the claimant on 30-31 August 2018 terminating his employment constituted direct and indirect discrimination and that it extends time for the race discrimination complaint. The sending of the letter was not one of the allegations of direct race discrimination which was identified as an issue for us to decide. There was no complaint of indirect discrimination identified for determination by us.

[17]End of hearing on 9 September 2021: Paul Wisniewski says that the respondent’s solicitor was still present when his connection to the CVP hearing was terminated at the end of the hearing on 9 September 2021, so he could not hear what was said between her and the tribunal. Nothing was said between the respondent’s solicitor and the tribunal after the hearing ended. The clerk terminated the connection of anyone who was still present in the virtual hearing room after the hearing ended. She did so one by one in no particular order. Nothing was said by the tribunal members to anyone who remained in the hearing after the clerk started this process.

[18]New evidence: Paul Wisniewski said he was sending new evidence. I have not been able to consider the evidence because the link to the document upload system has expired. But in any event, Paul Wisniewski has not explained why this new evidence has been produced after the hearing has finished. The interest in finality of litigation, that is the requirement that Page 3 of 4 disputes should be brought to a proper close rather than running on or being reopened, is particularly important in this context. In order to justify reconsideration on the ground of new evidence, it is necessary to show that the evidence could not with reasonable diligence have been obtained for use at the original hearing, that the evidence is relevant and would probably have had an important influence on the hearing, and that the evidence is apparently credible. No information is provided in the application to explain how these tests are met.

[19]Having considered the claimant’s application in full, I have concluded that the interests of justice do not require a reconsideration of the judgment and there is no reasonable prospect of the original decision being varied or revoked. The claimant’s application for reconsideration is therefore refused under rule 72(1).

INTRODUCTION

[1]On 6 July 2020 I conducted an open preliminary hearing in this case, following which I issued a judgment striking out all of the claimant’s claims except for five complaints of race and age discrimination.

[2]I gave the judgment and reasons for it orally on the day of the hearing. The resulting written judgment was signed by me on 6 July 2020 and issued to the parties by the tribunal on 17 August 2020.

[3]The claimant sent an email to the tribunal on 7 August 2020 making various points in relation to the hearing and the decision, though this was not framed as either a request for written reasons or an application for reconsideration.

[4]In response to the judgment being sent on 17 August 2020, on 18 August 2020 the claimant sent an email to the tribunal asking for the email of 7 August 2020 to be considered as a request for written reasons and as an application for reconsideration of the judgment. This request was repeated in an email from the claimant on 28 August 2020, with further submissions being sent by him on 30 August 2020.

[5]Each of those emails of August 2020 was first referred to me on 25 May 2022, apparently following prompting from the EAT. I am unable to explain why these were not referred earlier. A note on the tribunal file says that the emails “did not ever meet the file and therefore were never put before the judge”, but this does not explain why the emails “did not ever meet the file”. Page 1 of 5

[6]Fortunately the recording of my oral reasons has been retained, and what follows is a transcript of that, subject to some minor editing. Unfortunately I have not had the benefit of being able to refer back to the documents that were before me at the hearing when compiling these written reasons.

[7]The question of reconsideration will be dealt with by way of a separate judgment.

[8]The first point I have to decide is whether the claimant is a disabled person, or perhaps more correctly, whether he was a disabled person at the material time, which the parties have spoken of as being 2018.

[9]It was originally identified that the disability relied on was depression, but during the course of this hearing the claimant’s representative identified a number of other medical matters which I will deal with separately. It did appear that depression was the primary disability relied upon.

[10]It is for the claimant to prove that he is a disabled person and thereby provide the basis for his disability discrimination claim. In this case the evidence I have as regards depression as a disability is two medical notes from the claimant’s time in Poland in the early 2000s. Those were translated by his representative during the course of the hearing today and I accept that they show that the claimant received treatment for a mental health condition while in Poland, but in the translation that was given there was no mention of any specific conditions such as depression. In the rest of the medical evidence from the claimant’s time in the United Kingdom depression is mentioned once in one sick note where it is mentioned in passing alongside two other conditions. Those other conditions appear to have been seen by the doctor as being more significant, or having a more substantial impact on the claimant, than his depression. There is also, as pointed out by the claimant’s representative and as I note from the medical records, comments about the claimant having problems with nightmares. It is said that that may be in relation to his depression, although the doctor did not describe it as such.

[11]If the claimant had this condition, there is then the question of whether it had a substantial adverse effect on his day-to-day activities. A disability impact statement has been produced in accordance with the tribunal’s usual direction, but I’m afraid that doesn’t help me in getting anywhere with the effect of depression on the claimant's day-to-day activities. It relates to a full range of the claimant's health conditions and simply says that he is having problems with sleeping, having problems with doing things, having problems with making rational decisions and remembering things and with normal functioning in the society. That isn’t sufficient to persuade me that the claimant is disabled by reason of depression. There is nothing in there that I Page 2 of 5 would need to see about the particular effect of his depression on his day-today activities and there is certainly nothing in the medical evidence that shows me that this would count as being a disability in the legal sense. The claimant had not demonstrated that he was a disabled person by reason of his depression.

[12]As I mentioned before, he has a number of other medical conditions which are said to have arisen out of his work with the respondent.

[13]A large part of the hearing and the claim itself appears to have been conducted as if this is a personal injury claim, in which a relevant question is whether these illnesses derived from his work. As I explained during the course of the hearing that is not usually an issue in any disability discrimination claim in the employment tribunal, where the cause of the disability is rarely relevant.

[14]There are three particular conditions that were mentioned: asthma, carpal tunnel syndrome (which related to the period 2013 and 2014) and hearing loss.

[15]There are medical records showing that the claimant suffers from asthma and had carpal tunnel syndrome and there is also something showing a small diminution in his hearing, but there is nothing whatsoever that would suggest to me in the evidence that these had a substantial adverse effect on his normal day-to-day activities, so they are not disabilities for the purposes of the Equality Act 2010.

[16]Finally, there is the question of Alzheimer’s disease. This appears to have been a relatively recent development for the claimant and least in terms of his diagnosis. What I have on that is a doctors letter giving a diagnosis in 2020. There is nothing in this to suggest that he had this illness during his time with the respondent. The claimant’s representative made much of the question of whether this was caused by working conditions at the respondent. That is not what I have to decide. I find that the Alzheimer’s disease was not a disability at the relevant times.

[17]The end result of all of that is that I find that the claimant was not a disabled person for the purposes of his claim under the Equality Act. That must mean that the claimant’s disability discrimination claim has to be dismissed. Dismissal

[18]The second point I was to deal with today was an application by the respondent to strike out the claimant’s claims. This fell into two parts. The first was the claims of unfair dismissal and discrimination in relation to the claimant's dismissal. The argument from the respondent on this was that the presentation of the claim on 10 December 2018 was premature. The claimant had traced his dismissal back to August 2018 based on the letter that he had Page 3 of 5 had saying that if he did not produce a sick note he would be treated as having resigned.

[19]The respondent placed considerable reliance on a case called Rai, which I have read. It was said that that showed that a conditional dismissal such as “if you don’t do something by some time you will be dismissed” couldn't take effect - at least not as a notice period. I’ve read the Rai case and seems to me it’s not quite the same situation that we have here. The problem in Mr Rai’s case was that he had submitted his claim after having received conditional notice but before the notice took effect. The EAT decided that such a document couldn’t be considered to be a notice period within the meaning of section 111(3) of the Employment Rights Act 1996.

[20]I have, however, found that the claimant’s claims in relation to dismissal were premature. The reasons for that are that I do not think there is any concept of self-dismissal or deemed resignation such as appears in the August letter. I simply don’t think that works, and I also take note of the communications that continue between the claimant and the respondent where there is lots of talk about returning to work. It appears that both sides treated his employment as continuing until his dismissal in late December 2018 or early January 2019. For that reason, the claims in relation to dismissal are premature and that must mean that they struck out because the tribunal has no jurisdiction to consider them. Age and race discrimination

[21]There were then the question of the non-dismissal complaints which must be limited to age and race discrimination because the disability discrimination claim has been struck out. Ms McCann is right that the claimant has been given a number of opportunities to clarify exactly what those claims are, most recently by Employment Judge Vowles in a hearing on 2 July at which the employment judge required the claimant to give particulars of his claim no later than 27 August. I’ve been referred to the document that resulted from that. There is a lot in this that would seem to be the recitals of fact set out by the claimant and his representative, but at the heart of it there are clearly made out claims of race discrimination and age discrimination.

[22]Ms McCann criticises these as not meeting the requirements of specificity that were set by Employment Judge Vowles. Well, I think that means that I’m asked to strike out the claim because these items didn't comply with the order and therefore it is a question of whether I should strike out the claim for not complying with the tribunal order and I won’t do that. As I will come onto I think there is a role for an unless order in this situation, which was the alternative order sought by Ms McCann to give the claimant a last chance to fully explain this case. I will work through with the parties now what I have identified as being the claims of age and race discrimination and we will see Page 4 of 5 what may need to be done by way of an unless order to ensure that the respondent properly knows the case that it has to meet.

[1]The circumstances in which this reconsideration application comes to be dealt with are set out in the written reasons for the tribunal’s original judgment.

[2]I take the claimant’s application for reconsideration to be set out in his emails of 7, 18, 28 and 30 August 2020. Of these, the most substantial documents are the emails of 7 and 30 August 2020.

[3]The essence of the application seems to be found in at the start of the “important introduction” to the 7 August 2020 email: “… on 6.07.2020 Employment Tribunal misunderstood presented facts and believed some of the wrong explanations – lawyer’s explanations”

[4]What follows in the email of 7 August 2020 is essentially the claimant rearguing matters that were the subject of determination by the tribunal. The email also suggests that full medical documentation was not produced by the claimant during the hearing.

[5]These amounts to disagreement with the tribunal’s factual findings, and an indication that there may have been further evidence which should have been (but was not) produced by the claimant at the preliminary hearing. Case No: 3310853/2019 Neither are matters that give rise to a reasonable prospect of the original decision being varied or revoked.

[6]The email of 30 August 2020 repeats many of these points and raises other matters that are not relevant to the decision made by the tribunal, such as prior claims that have been made against the respondent, and the standing of lawyers in claims such as these.

[7]None of these matters give rise to a reasonable prospect of the original decision being varied or revoked, so the application for reconsideration is refused.