Mr A Malcolm v Felixstowe Dock & Railway Company: 3311171/2022
EMPLOYMENT TRIBUNALS
Case No 3311171/2022
Between
Mr. A. MalcolmClaimantFelixstowe Dock & Railway Company PUBLIC PRELIMINARY HEARINGRespondent
Before
Employment Judge H. MasonMs. Mankau (instructed by counsel) for respondentDate 18 May 2023
JUDGMENT
The claim of unfair dismissal is dismissed as it was presented out of time and it was reasonably practicable to present it in time. The disability discrimination claim is also dismissed as it was presented out of time and it is not just and equitable to allow out of time. These proceedings are dismissed.
REASONS
[1]The Claimant’s claim was presented on 4 September 2022. The complaints are unfair dismissal and disability discrimination. These are defended by the Respondent[2]This Public Preliminary Hearing was listed by EJ Laidler on 19 January 2023 to consider the Respondent’s application to strike-out the claim (or alternatively for a deposit order) on the basis the claim was presented out of time. At the hearing, Ms. Mankau clarified that in fact the Respondent was not seeking a deposit order as an alternative to strike-out. PHCM Order (NEW August 2020) 1 of 11 August 2020 Procedure at the hearing[3]The Claimant attended and was represented by Mr. Marsh; Mr. Marsh told me he was acting in a lay capacity although he had a law degree. The Respondent was represented by Ms. Mankau, counsel; her instructing solicitor, Ms Herbert was also in attendance. The hearing did not start until 10.50am as Mr. Marsh’s train was delayed.[4]At the start of the hearing, I agreed with the parties the issue to be determined today (para 2 above) and the relevant law (paras 42- 51 below). I stressed to Mr. Marsh that if the Claimant needed a break at any time, that would be accommodated. I also advised Mr. Marsh (as a lay representative) that I was happy to repeat or explain anything.[5]The Respondent provided a bundle of documents, 113 pages. Mr. Marsh also provided at the hearing copies of the Claimant’s medical notes and medical reports dated November 2022 and 13 April 2023 from Dr Renshaw of Felixstowe Road Medical Practice. These were copied and Ms. Mankau and I took time to read them.[6]The Claimant had provided a witness statement (in the bundle) but this did not deal with the issue to be determined at the preliminary hearing, namely the reason for the delay in presenting his claim. However, he deals with this in his claim form and the Claimant confirmed (having affirmed) the following (extract from his ET1): “I hope this claim is made in the time required, but if not please see the valid reasons below that I have been through trying to get this claim raised: The mental health problems I have suffered with have taken such a toll on me; it has been a tremendous battle to keep myself going but I have struggled so much with day-to-day things. I have never been in this position before and would never want to go through an experience like this again. The grievance & medical termination process, as well as the appeal, took far to long to gain an outcome. The grievance was still going on past the date I was medically terminated. I had many chats with ACAS who advised me to exhaust all my options in relation to the various processes around keeping my employment. I raised an SAR request with my ex-employer, and this took over a calendar month for me to get the information. This was especially important to have the information I needed to help raise this employment tribunal claim. I have reported this to the ICO to confirm this is a failing of the dates they are required to send it to me. I also asked my ex-employer to remove the “reason for leaving” off my reference, as I believe they don’t have a lawful basis to send this information (sensitive data), but they refused which meant I had to explain to my new employer what had happened, which I felt was very distressing and could have impacted me getting the role. They wanted to make it as uncomfortable for me as possible. I started my new job in June, and I wanted to be successful with them so a lot of time over the last few months has been trying to get my confidence up regarding working with new people in a different environment. Luckily, my new employer is incredibly supportive and have made me feel welcome and valued. The distress I have been through and continue to go through, I want to make sure what happened to me does not happen to anyone else”[7]In view of the Claimant’s vulnerability, at Ms. Mankau’s suggestion I asked the Claimant questions (by way of clarification) about the reasons for the delay in his application. Ms. Mankau did not cross-examine. PHCM Order (NEW August 2020) 2 of 11 August 2020[8]The Claimant provided witness statements from his wife and Ms Cooke (his new employer). I have read these but they are of limited assistance in throwing light on the Claimant’s reasons for delaying presentation of this claim.[9]Ms. Mankau provided written submissions and made further verbal submissions. Mr. Marsh made verbal submissions. Having checked the parties availability, I provisionally listed a further preliminary hearing on 3 July 2023.[10]Due to lack of time, I reserved my decision which I now give with full written reasons.
Findings of Fact
[11]On 30 August 2016 the Claimant started his employment with the Respondent. His role was HR Advisor/Co-Ordinator.[12]From 24 March 2021 to 14 July 2021, the Claimant was absent from work for various reasons but primarily due to poor mental health. On 14 July 2021, he returned to work on a phased basis.[13]From 16 November 2021 to 27 April 2022 (date of termination) the Claimant was absent from work due to his mental health. Various meetings took place with the Claimant during his absence.[14]On 21 December 2021, the Claimant requested redeployment and on 23 December 2021 the Respondent referred him to Occupational Health.[15]On 25 January 2022, the Claimant submitted a grievance.[16]On 26 January 2022, the Respondent gave the Claimant 13 weeks written notice of termination of his employment on grounds of incapability.[17]On 10 February 2022, the grievance hearing took place.[18]On 9 March 2022, the Claimant submitted an appeal against the decision to dismiss. The appeal hearing took place on 13 April 2022.[19]At a Long Term Absence Management Process meeting on 14 March 2022 the notes show: “Awaiting response from grievance before decision is made. End date of medical termination 26 April. Will review grievance response before looking at other options, including ET” [page 82][20]On 13 April 2022, the hearing of the Claimant’s appeal against his dismissal was held.[21]On 20 April 2022, the Claimant was advised his grievance was not upheld.[22]On 25 April 2022, he was advised that his appeal against the decision to dismiss him had been upheld. PHCM Order (NEW August 2020) 3 of 11 August 2020[23]On 27 April 2022, the Claimant’s employment came to an end.[24]On 29 April 2022, the Claimant appealed the outcome of his grievance. On 20 May 2022 the grievance appeal was heard.[25]In May 2022, the Claimant started a new job but only stayed there for a few days.[26]On 6 June 2022, the Claimant was advised that his grievance appeal was unsuccessful.[27]Also on 6 June 2022, the Claimant started another new job and he remains in that employment. His role is HR Specialist.[28]On 13 June 2022 the Claimant first notified Acas for the purposes of early conciliation.[29]On 14 June 2022, the Claimant made a DSAR request of the Respondent [page 96].[30]On 8 July 2022, the Claimant emailed the Respondent [page 98 and 99] asking the Respondent to remove the “Reason for Leaving” from his employment reference and chased this up on 11 July 2022 [page 98].[31]On 11 July 2022 Acas issued an Early Conciliation Certificate.[32]On 19 July 2022, the Claimant emailed the Respondent [page 96] regarding the SAR request he made on 14 June. He concludes: “These documents are vital for my solicitor to have all facts for my employment tribunal against the Port, due to the trauma, distress and affect it has had (and still has) on my mental health due to being unfairly dismissed under a flawed medical termination process”[33]The deadline for submitting a claim to the employment tribunal was 23 August 2022 (“the Limitation Date”)[34]On 4 September 2022, the Claimant presented this claim. On 23 November 2022 the Respondent submitted a response defending the claims[35]Relevant extracts from a GP report dated 23 November 2022 are as follows: “As General Practitioner to the above named patient, I can confirm that he has been under regular review since the 18th November 2021 with regard to a diagnosis of work related stress associated with anxiety and low mood. He was first provided with a medical certificate on the 18th November ‘21 , his last certificate being given on 1st April ‘22, with a diagnosis of stress reaction, depression and anxiety. At his initial presentation Mr. Malcolm reported symptoms of mental exhaustion, variable pattern, variable appetite, reduction in energy levels, reduced motivation and concentration. It was clear that this situation was impinging on his home life and ability to socialise. He was commenced on antidepressants in the form of Sertraline 50mg daily in January ’22, which was subsequently increased in dose in May’22, as his mood had dipped further at that stage. Mr. Malcolm has continued on the antidepressant medication, i.e. Sertraline 100mg daily, and has been followed up on a regular basis by the Surgery, Since starting new employment his mood has improved and I understand that he is enjoying his new occupation and feels well supported by his current employer”. PHCM Order (NEW August 2020) 4 of 11 August 2020[36]A subsequent GP report dated 13 April 2023 which provides further information regarding the Claimant’s condition from November 2021. Insofar as it pertains to the relevant period (date of termination of employment on 27 April 2022 to the Limitation Date) this report states that the Claimant was reviewed on 29 April 2023 at which time he reported ongoing benefit from the Sertraline. He was further reviewed on 27 May 2022 and reported having had a “breakdown” the previous week whilst doing temporary work in Bury and reported “feelings of despair and loss of confidence”; his dose of Sertraline was increased to 100mg daily. He was not reviewed again until 2 September 2022 when he reported some benefit from the increased does of Sertraline, and described slight “brain fog” from the medication, but felt that it was keeping his anxiety at a manageable level.[37]Medical records for the period 27 April 2022 to 23 August 2023 show :37.1 Consultation with Dr Renshaw on 29 April 2022: the notes read as follows: “His grievance has been partially resolved a week ago – his contract has been medically terminated – still not received a satisfactory outcome and may go to a tribunal. Finds the sertraline helpful. No longer needs a Med3. Found a new job. Discussion re how long to continue Sertraline. Examination: Calm, good rapport”37.2 Consultation with Dr. Deole on 27 May 2022: the notes read as follows: “… wanted to talk about mental health, previous work related stress, ongoing grievance process. Was medically terminated. Starting new job in June for a new company. Last week had an episode of breakdown, was doing temporary work at Bury …. “feels Sertraline helping with mood. Calm, rational, insight+” Plan: We agree to try increasing Sertraline to 100mg, gen adv re: exercise/Mindfulness, review in one month”37.3 Consultation with Dr. Renshaw on 2 September 2022: the notes read as follows: “problem: Acute stress reaction (XE1Ym). … doing ok on the Sertraline – has a new job with a supportive employer. Ongoing grievance with former employer – stressful. At times gets a bit of brain fog - ?related to the sertraline. Medication keeping the anxiety at a manageable level”[38]I accept the Claimant’s evidence that he cannot recall much about the conversations he had with ACAS. He cannot recall whether or not he was advised of the time limit for submitting a tribunal claim. He recalls that Acas told hm to explore all other options.[39]He also cannot recall whether he had advice from the Citizens Advice Bureau. However, I find that he did as this is referred to in his email to the Respondent dated 8 July 2022 [pages 98-99].[40]I accept that he did not have advice from a solicitor although he refers to this in an email dated 19 July 2022 [Page 96]; I accept his explanation that this was in an attempt to make the Respondent take him more seriously; this was not challenged by Ms. Mankau. I accept he did not consult with Mr. Marsh until November 2022.[41]I accept the Claimant’s evidence that although he has been employed in a HR role for many years he does not have any HR qualifications (he learned “on the job”) and has not had prior experience of tribunal proceedings. He was a co-ordinator dealing with primarily recruitment and the Respondent had a separate HR team for dealing with Tribunal cases. PHCM Order (NEW August 2020) 5 of 11 August 2020 The law Unfair dismissal: time limit
The law
[42]Section 111(2) Employment Rights Act 1996 (the "ERA") provides the relevant part that: “An employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal:(a) before the end of the period of three months beginning with effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”[43]The primary limitation period has been amended by the ERA, section 207A. The effect of section 207A ensures that the period between the date when the prospective claimant contacts ACAS and the date when the prospective claimant receives or is treated as receiving the ACAS Early Conciliation Certificate and does not count towards the three-month primary limitation period.[44]The strictness of the test was emphasised by Judge LJ in London Underground Ltd v Noel [1999] IRLR 621 said this: “By section 111(2)(b) this period may be extended when the tribunal is satisfied ‘that it was not reasonably practicable for the complaint to be presented before the end of that period. The power to disapply the statutory period is therefore very restricted. In particular it is not available to be exercised, for example, ‘in all the circumstances’, nor when it is ‘just and reasonable’, nor even where the tribunal, ‘considers that there is good reason’ for doing so.” As Browne-Wilkinson J observed: “The statutory test remains one of practicability … The statutory test is not satisfied just because it was reasonable not to do what could be done’- Bodha (Wishnudut) v. Hampshire AHA [1982] ICR 200, 204.”[45]The onus of proving that presentation of the claim in time was not reasonably practicable rests with the Claimant.[46]The test is an empirical factual test based on practical common sense. In Palmer and anor v Southend-on-Sea Borough Council [1984] ICR 372, CA, the Court of Appeal conducted a general review of the authorities and concluded that ‘reasonably practicable’ does not mean reasonable, which would be too favourable to employees, and does not mean physically possible, which would be too favourable to employers, but means something like ‘reasonably feasible’. Lady Smith in Asda Stores Ltd v Kauser EAT 0165/07 explained it in the following words: ‘the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done’.[47]A number of factors need to be considered including:47.1 the substantial cause of the Claimant's failure to comply with the statutory time limit;47.2 whether the Claimant knew of his rights and if not, whether ignorance was reasonable; the correct test is not whether the Claimant knew of his or her rights but whether he or she ought to have known of them (Porter v Bandridge Ltd 1978 ICR 943, CA). Ignorance of the time limit will rarely be acceptable as a reason for PHCM Order (NEW August 2020) 6 of 11 August 2020 delay; a Claimant who is aware of his or her rights will generally be taken to have been put on inquiry as to the time limit. When a Claimant knows of his or her right to complain of unfair dismissal, he or she is under an obligation to seek information and advice about how to enforce that right. Failure to do so will usually lead the tribunal to reject the claim (Trevelyans (Birmingham) Ltd v Norton [1991] ICR 488, EAT).47.3 whether the Claimant had been advised by anyone;47.4 the nature of any advice given;47.5 whether there was any substantial fault on the part of the Claimant which led to the failure to present a claim in time.47.6 whether the Claimant’s ill health meant that it was not reasonably practicable to claim in time taking into account any medical evidence provided which demonstrates that the Claimant was prevented from submitting the claim on time.[48]The Tribunal must also separately consider whether, if it was not reasonably practicable to claim in time, the claim was also presented within a reasonable further period. That requires an objective consideration having regard to all of the circumstances of the case, including what the Claimant did, what he knew or reasonably ought to have known about time limits, and why it was that the further delay occurred. Discrimination claim: time limit[49]S123(1)Equality Act 2010 (“EqA”) provides that complaints may not be brought after the end of (a) the period of 3 months starting with the date of the act which the complaint relates; or (b) such other period as an Employment Tribunal thinks just and equitable. S123(2) EqA provides that: (a) Conduct extending over a period is to be treated as done at the end of the period; (b) Failure to do something is to be treated as occurring when the person in question decided upon it.[50]The primary limitation period has been amended by the ERA, section 207A. The effect of section 207A ensures that the period between the date when the prospective claimant contacts ACAS and the date when the prospective claimant receives or is treated as receiving the ACAS Early Conciliation Certificate and does not count towards the three-month primary limitation period.[51]Discretion to allow out of time on a just and equitable basis51.1 Whilst the hurdle is lower than the “reasonably practicable” test used in unfair dismissal cases, exercise of discretion should be the exception, not the rule (Robertson v Bexley Community Centre [2003] EWCA Civ 536 and (Department of Constitutional Affairs v Jones [2008] IRLR 128). Tribunals should not extend time unless the Claimant convinces them that it is just and equitable to do so.51.2 When a Claimant is at fault for late presentation of the claim the decision not to exercise discretion may be made principally on that ground (DeSouza v Manpower UK Ltd UKEAT/0234/12/LA). PHCM Order (NEW August 2020) 7 of 11 August 202051.3 If an internal procedure (e.g. grievance or appeal) is ongoing, this does not mean that it is always just and equitable to extend time; it is one factor to be weighed in with all the other relevant factors (Robinson v Post Office [2000] ICR 713).51.4 The Employment Tribunal may have regard to any relevant factors derived from the “checklist” in s33 Limitation Act 1980 (British Coal Corporation v Keeble [1997] IRLR 336 and London Borough of Southwark v Afolabi [2003] IRLR 220) which deals with exercise of discretion in civil courts and requires the court to consider:(i) the prejudice that each party would suffer as a result of the decision;(ii) to have regard to all the circumstances of the case and in particular the length of and reasons for the delay;(iii) the extent to which cogency of the evidence is likely to be affected;(iv) the extent to which the Respondent has co-operated;(v) the promptness with which the Claimant acted once he knew of the facts giving rise to the cause of action; However, Tribunals do not need to consider all these factors in each and every case.51.5 The EAT gave further guidance in Wells Cathedral School Ltd v Souter EA [2021] 7 WLUK766: (i) the Tribunal’s discretion is wide; (ii) an extension of time is the exception not the rule; (iii) what factors are relevant and how to weigh them up are matters for the Tribuna;l (iv) the Tribunal may find the checklist of factors in s33 Limitation Act 1980 helpful (v) an ongoing grievance is not automatically enough for an extension(vi) the lack of forensic prejudice to the Respondent’s cogency of evidence is a factor but does not point to an automatic extension. The EAT considered prejudice in a recent decision, A v Choice Support (formerly MCCH Ltd [2022[ EAT 145. The EAT rejected the Claimant’s argument that as the alleged perpetrator had already been dismissed prior to the limitation date, the Respondent suffered no additional prejudice when she presented her claim late. The EAT held that to accept such an argument would effectively limit the Tribunal only to consider disadvantages caused by delay whereas this is one of the potentially relevant elements to be put into the balance; the fact that the disadvantage may have changed if the claim was in time was not necessarily relevant. What matters is, if the claim is late, the Tribunal is required to consider the impact on the parties in deciding whether it is just and equitable to extend the time limit. Submissions Respondent[52]Ms. Mankau submits on behalf of the Respondent that none of the reasons put forward by the Claimant rendered it not reasonably practicable for him to submit his claim in time and none render it just and equitable to extend time.[53]There is no relevant medical evidence, documentary evidence and nothing in his witness statement in support of the assertions he makes in relation to the late submission of his claim form. The medical evidence provided today does not assist the Claimant in demonstrating that he was experiencing any particular problems with submitting a claim during the relevant period. In fact, it shows that as at 29 April 2022 he intended to make a claim to Tribunal. The medical evidence PHCM Order (NEW August 2020) 8 of 11 August 2020 also shows that the Sertraline was helpful, he was calm, rational and had good rapport.[54]Ms. Mankau submits that the Claimant ought to have known about the deadline:54.1 He clearly knew about the termination of his employment far in advance (7 months) of the Limitation Date and was capable of undertaking a number of internal termination/grievance processes throughout the period and had assistance from Acas and Citizen’s Advice. She accepts his verbal evidence that he did not in fact consult a solicitor54.2 The Claimant was an HR advisor and it can be presumed he had awareness of the employment tribunal system or at the least, sources of assistance/advice.54.3 At a Long Term Absence Management Process meeting on 14 March 2022 (almost six months before the limitation date) the Claimant stated “Will review grievance response before looking at other options, including ET” [page 82]54.4 The Acas Early Conciliation Certificate was issued on 11 July 2022 and he had a further six weeks after that date to submit his claim54.5 The Claimant states that he was advised by Acas that he should exhaust all options in relation to processes around keeping his employment but in fact the appeal against his dismissal was concluded by 25 April 2022 and the grievance appeal was concluded on 6 June 2022 – some two and a half months prior to the Limitation Date. The Claimant made a DSAR on 14 June 2022 and received a response by 19 July 2022, more than a month before the limitation date.54.6 In any event, there is no evidence from the Claimant concerning what he told Acas, what he was advised, by who and when. The Acas website makes clear that grievances and appeals do not change the time limits to make a claim [pages 85, 89 and 92] and that time limits are strictly enforced and that Acas conciliators cannot decide or advise on whether a claim is in time [page 87]. The Claimant could have easily discovered this with minimal effort. 54.5 The Claimant started a new job on 6 June 2022, 3 months prior to the Limitation Date. If he could start a new job, he was capable of submitting a claim.[55]With regard to the balance of prejudice, or hardship, Ms. Mankau submits that the Claimant’s claim relates to historic matters when the Claimant alleges he was bullied; this period is already 2 years ago. By the time of the final hearing, possibly 3 or 4 years will have passed and this is a long time for witnesses to remember events. Two of the potential witnesses no longer work for the Respondent. It is not the length of the delay in submitting the claim (12 days) that should be considered but the delay in getting to a hearing. Claimant[56]Mr. Marsh submits as follows:56.1 The claim was presented only 12 days out of time. Due to his mental health, the Claimant was not equipped to understand and process the way forward and make a Tribunal claim. His impairment was such that he was not fit mentally to comprehend, remember or recognise what needed to be done.56.2 The impact on him of stress, anxiety and depression was severe and this is why Sertraline dose was increased during that period which shows his condition was not improving. Without that medication, the affects would be severe and he would lose cognitive ability. PHCM Order (NEW August 2020) 9 of 11 August 202056.3 The Claimant focussed on finding new employment to “get his life back together” and to meet financial commitments. But everything was a haze and he was at a “crossroads of uncertainty”. This has also affected his wife and son.56.4 With regard to Ms. Mankau’s submission that the Respondent would suffer prejudice because of witnesses availability and ability to recall events, he says the witnesses have left the department the Claimant worked in because they were subjected to the same treatment as the Claimant. This disadvantage is therefore of the Respondent’s own making.
Conclusions
[57]Applying the relevant law to the findings of fact to determine the issue, I have reached the following conclusions.[58]It is agreed that the Claimant presented his claim 12 days after the Limitation Date. The Claimant has failed to persuade me that it was not reasonably practicable for him to present a claim to the Tribunal prior to the Limitation Date. In reaching that conclusion I have taken into account the following:58.1 The Claimant ought to have known of the time limit. He was clearly aware of his right to make an employment tribunal claim prior to the Limitation Date:(i) on 14 March 2022 he mentioned at a Long Term Absence Management Review that one of his options was an ET claim;(ii) the medical records show that at the consultation with Dr Renshaw on 29 April 2022 he indicated he “may go to a tribunal”;(iii) in his email on 19 July 2022, [page 96] he refers to “… my employment tribunal against the Port, due to the trauma, distress and affect it has had (and still has) on my mental health due to being unfairly dismissed under a flawed medical termination process” He could and should at any time made inquiries as to the time limit for presenting a claim. Information is readily available on the internet, such as the Acas website and he had advice from the CAB and Acas.58.2 The internal procedures were exhausted prior to the Limitation Date: (i) the appeal against the decision to dismiss was concluded on 25 April 2022; (ii) the grievance appeal was concluded on 6 June 2022; and (iii) he had a response to the DSAR by 19 July 2022.58.3 I fully accept that the Claimant’s mental health was impaired but not to the extent that it prevented him from submitting a claim in time. I do not accept Mr. Marsh’s submission that the Claimant was unable to understand and process the way forward for the following reasons: (i) the GP report of 13 April 2023 shows that whilst he was reviewed on 27 May 2022 (when the dose of Sertraline was increased) at the next review on 2 September 2022 he reported some benefit from the increased dose of Sertraline, and described slight “brain fog” from the medication, but felt that it was keeping his anxiety at a manageable level; (ii) between the termination date and the Limitation Date the Claimant was able to find and start new full-time employment, pursue a grievance, pursue appeals against a grievance and against the decision to dismissed and make DSAR.[59]In view of the above conclusion it is not necessary to go on to consider whether the claim was presented within a reasonable further period after the Limitation Date. The Tribunal does not have jurisdiction to hear the unfair dismissal claim. PHCM Order (NEW August 2020) 10 of 11 August 2020[60]With regard to the disability discrimination claim, the test is different and wider as time may be extended for such period as the Tribunal thinks “just and equitable”. However, again an extension of time is the exception, not the rule, and the Claimant has failed to persuade me that it would be just and equitable to extend time beyond the Limitation Date. I have taken into account all the same factors as set out above and also considered the prejudice that each party would suffer as a result of this decision. I accept Ms. Mankau’s submission that the Respondent will suffer some prejudice in terms of the availability and cogency of witness evidence if an extension of time is granted; such prejudice is limited in view of the delay of 12 days and is certainly not conclusive but it is still something to be taken into account. I have also weighed against this the prejudice the Claimant will suffer being denied the opportunity to pursue his claim. But taking all the factors into account I cannot accept that it would be just and equitable to allow an extension of time. The Tribunal therefore does not have jurisdiction to hear the disability discrimination claim.[61]The Claimant’s claims are therefore dismissed and the provisional preliminary hearing on 3 July 2023 is vacated.[62]Finally, I would like to thank both parties and their representatives for the courtesy and respect they showed the Tribunal and each other throughout the hearing.
Conclusions
[1]The power to reconsider a judgment is given by rule 70 of the Employment Tribunals Rules of Procedure which provides: “A Tribunal may … on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so … Rule 71 provides: Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) … and shall set out why reconsideration of the original decision is necessary. “[2]The Employment Tribunal can therefore only reconsider a decision if it is necessary to do so “in the interests of justice.” A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a “second bite of the cherry” and the jurisdiction to reconsider should be exercised with caution. A Tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’ (the overriding objective in Rule 2). PHCM Order (NEW August 2020) 1 of 3 August 2020[3]Following a Public Preliminary Hearing (in person) on 15 May 2023 , the Tribunal:3.1 dismissed the claim of unfair dismissal as it was presented out of time and it was reasonably practicable to present it in time:3.2 dismissed the claim of disability discrimination as it was presented out of time and it was not just and equitable to extend time.[4]Full written reasons for that Judgment were sent to the parties on 19 May 2023.[5]On 1 June 2023, the Claimant wrote to the Tribunal as follows: “From now on I will be representing myself to confirm. Unfortunately, I cannot meet the costs to keep Bob Marsh as my representative in my case any further. Due to this I will be sending across my reconsideration request around the tribunal judgment provided on 19th May 2023, with the end of the 14-day period being 2/6/2023 to get the reconsideration request in by. I have new evidence which I believe should be considered in the interest of justice. This is also supported by WhatApp messages and emails in July & August 2022. I will send this over tomorrow with my own additional points around the judgment reasons.” On 2 June the Claimant sent a further email attaching a reconsideration request and various attachments.[6]The Claimant’s Reconsideration request focuses on two areas or grounds:6.1 The Claimant says: “I have further evidence from a colleague around the tribunal claim process, which is attached to the same email, as well as the communications between us during those periods. I hope this shines a light on the fact that I was unable to deal with the tribunal process due to it being a huge trigger point for all I had been through, and that it was not reasonably practicable for me to get the claim submitted in time by myself, hence the reason I really needed support from others. My wife has also added further detail to her previous statement supplied at the preliminary hearing, as it is extremely important to show further context in what I was going through. When I think back to last year a lot of it was a blur, and I think it is extremely important not to minimise the impact on my mental health, this is a serious stigma with men, and it is something incredibly difficult to face or to talk about”6.2 The Claimant disagrees with some of the conclusions in the Judgment.[7]With regard to the evidence submitted with the Claimant’s reconsideration request, there was every opportunity for the Claimant to adduce this at the hearing. This is not new evidence in the sense that it has only come to light after the hearing. This is evidence which could have been made available for use at the hearing and it is not in the interests of justice to give a party a second bite of the cherry because they failed as a result of oversight or miscall in their litigation strategy to adduce all the evidence available at the original hearing.[8]With regard to the Claimant’s disagreement with some of my conclusions, this is not a valid reason for reconsidering my judgment. The Claimant is seeking to reargue points which have already been fully considered and the Claimant is effectively asking a a second hearing of these issues. It is in the public interest that there should be finality in litigation and the interests of justice apply to both sides. As the EAT decided in Fforde v Black EAT 68/60, the interests of justice does PHCM Order (NEW August 2020) 2 of 3 August 2020 not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. The ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”. This is not the case here.[9]In conclusion, I refuse the application for a reconsideration because there is no reasonable prospect of the Judgment being varied or revoked. The purpose of a reconsideration application is not to provide a hearing at which the same evidence can be rehearsed with different emphasis or further evidence adduced which was available (or could have been made available) at the time.