Mr M Lappin v Commissioner of Police of The Metropolis: 3311423/2023
EMPLOYMENT TRIBUNALS
Case No 3311423/2023
Between
Mr M LappinClaimantCommissioner of Police of the MetropolisRespondent
Before
Employment Judge QuillIn person for claimantMs Crew (instructed by counsel) for respondentDate 28 May 2024
REASONS
[1]This was a one day public preliminary hearing which took place entirely in person.[2]There was a bundle of about 283 pages. There were two written statements; a two-page statement from Aaron King and a two page statement from Richard Lee. I have taken each of those into account.[3]The claimant had not produced a written statement but he gave evidence in chief orally and was cross examined. The other two individuals did not attend the hearing. I have given their statements such weight as I see fit. The respondent did not rely on any witness evidence.[4]Following clarification of the claims contained in the claim form, the alleged acts and omissions were as follows: Some slight further clarification might have been required but they were clear enough for me to make the decisions today. There were complaints about: 4.1. The decision by Mary Coller to make her recommendations, prior to 1 November 2022, without interviewing the claimant or contacting him for interview or receiving an MG14 from him or contacting him to ask for an MG14 from him. 4.2. Alternatively, the omission of Mary Coller in that she did not interview the claimant or obtain MG14 from him which the claimant alleges she ought to have done around early to mid-September 2022. 4.3. Thirdly, the decision by DCI O’Connor that the claimant would face a gross misconduct hearing and/or the failure by DCI O’Connor to allow the claimant to comment before that decision was made. 4.4. Fourthly, the decision by Commander Savelll in around late October 2022 that there should be an accelerated misconduct hearing and/or the failure by Commander Savell to allow the claimant to comment before that decision was made. 4.5. Fifthly, the decision in around January 2023 by Commander Savell to stand by the decision about the accelerated misconduct hearing even after the claimant’s legal representatives made submissions. 4.6. Sixthly, the decision by AC Gray to dismiss the claimant on 2 March 2023, and 4.7. Seventhly, the decision by AC Gray that the claimant was in some way at fault in allegedly failing to engage during the process.[5]Each of those acts or omission were alleged to have been examples of the claimant being treated unfavourably because of something arising from disability. The “something arising in consequence of disability” in each case being his absence from work from June 2022 onwards.
Findings of fact
[6]The findings of fact are as follows.[7]The claimant was absent from work on sick leave from around June 2022, approximately 30 June 2022, until his dismissal from the role of a Police Officer which was on 2 March 2023 (and was without notice).[8]There were some periods during that sickness absence when he could not have been contacted because he was in rehab. These were periods of four weeks and two weeks respectively towards the end of 2022.[9]Prior to the start of that sickness absence there were two incidents in which the claimant was allegedly drunk on duty. The first of those was in around April 2022 and the second immediately preceded the start of his sickness absence.[10]In relation to the first incident, the Federation Representative who assisted him was Sergeant King. The individual involved in the investigation on behalf of the Professional Standards Department was Ben Baldwin.[11]At page 230 of the bundle is the start of an email trial, with an email of 11 May 2022, in which Ben Baldwin asked the claimant to provide an MG14, in other words, a statement setting out his version of events and/or any mitigation.[12]In due course, and with the prompting of Sergeant King, the claimant submitted an MG14. I note that in Sergeant King’s written statement for these proceedings Sergeant King thinks that he might have pushed the claimant too hard to produce this document and that that might have caused the incident which followed immediately afterwards in which the claimant was allegedly found asleep and over the alcohol limit while on duty.[13]Regardless of whether Sgt King is correct in that assessment or not, and regardless of whether producing an MG 14 might have been damaging to the Claimant’s health or not, the correspondence demonstrates that the claimant was aware that it was possible for an officer to submit an MG14 following alleged incidents of misconduct.[14]The Claimant knew that submission of an MG14 could be done. Regardless of whether it was the claimant’s opinion that the officer could only submit an MG14 if specifically asked to do so, or regardless of whether it was the claimant’s opinion that the officer had the right to do it (whether asked to do so or not), the claimant was aware that (at least some of the time) submission of MG14 could be part of the process.[15]The second incident was investigated by Professional Standards. Mary Coller was involved in that investigation. My finding of fact for today’s purposes, which I do not necessarily intend to be binding if there were to be any further hearings, is that Ms Coller did not contact the claimant either to invite him to attend an interview or to invite him to submit an MG14.[16]Ms Coller was, it would appear, in touch with Sergeant King. The exact details of what she asked Sergeant King to pass on to the claimant, and the exact details of what Sergeant King did, in fact, pass on to the claimant, are not matters that are crucial for my decision today. However, I find that the claimant was not told that he had the possibility, or the option, of submitting a further MG14 or an updated MG14 had he wished to do so.[17]However, by early November 2022, all of the following things had occurred: 17.1. Mary Coller had produced a report; 17.2. There had been a decision that the claimant would face a gross misconduct hearing; 17.3. There was a decision that it would be dealt with under the accelerated misconduct hearing process.[18]The hearing was (originally) scheduled to take place on 19 December and the claimant became aware of that 19 December date. Via representatives, including legal representatives, the claimant objected to that hearing date and he objected to the use of the accelerated misconduct hearing procedure.[19]The Claimant knew, at the time of those objections, that no new MG14 had been submitted. 19.1. Either the Claimant thought it could only be done if it was requested, in which case, he knew that no request had been made. (As I say, I am proceeding on the basis that no request had been made, which is the Claimant’s case). 19.2. Or, he thought he had the option to submit an MG14 (at the investigation stage) whether asked to do so or not. In which case, he knew, in advance of the intended 19 December hearing date, that matters had progressed through the investigation stage, and were now at the hearing stage, without his having submitted an MG14 (either voluntarily, or on request).[20]There may be a dispute between the parties about why the hearing did not go ahead in December but that does not matter for my decision today. The postponement application was refused on 13 December 2022 (by AC Gray) and a renewed application, which referred to the refusal, was made by the Claimant’s solicitors on 15 December 2022.[21]The fact is that the hearing did not eventually go ahead on 19 December 2022 and instead it was rearranged for 2 March 2023. The claimant was aware of the new hearing date and he was also aware that the respondent had not reversed its decision that the matter would be dealt with under the accelerated misconduct hearing procedure. See letter of 9 February 2023, at page 118 of bundle, for example.[22]As part of their submissions in connection with postponing the 19 December hearing, the claimant’s legal representatives had argued that the claimant wanted the opportunity to submit a response in accordance with Regulation 54, that is on page 108 of the bundle. In particular, there was a suggestion that the claimant was not well enough at that time to prepare that statement. Both the claimant and his legal representatives were aware that the claimant had not previously submitted an MG14. There was no suggestion in this document that the claimant wanted to submit an MG14. There was a realistic assessment, in my judgment, at paragraphs 19 and 20 of the submission (page 112 of bundle) that matters had now gone past the stage at which the Claimant might have submitted an MG14 to be taken into account by Mary Coller. A notice of proceedings had already been issued. Instead, of requesting the chance to submit comments by way of MG, instead, as I have mentioned, the request was that the claimant be allowed to submit a statement under Regulation 54.[23]The claimant did in fact have the opportunity to submit such a statement prior to 2 March hearing and it was done, it would appear, on the claimant’s behalf by Inspector Lee; it certainly was not done by the claimant himself. Whoever produced the document (and my finding is that it was Inspector Lee) included comments that are on pages 244 through to 247 of this particular bundle. On the claimant’s behalf, Inspector Lee commented on the lack of response to the Form 163 sent to the claimant in July 2022. Inspector Lee invited the misconduct panel to ensure that the lack of response was not held against the claimant given that the claimant had been off sick from 30 June 2022 onwards. 23.1. That same document went on to say that while alcoholism was not in itself a protected characteristic under the Equality Act. the claimant did, in fact, have an underlying condition that was a protected characteristic under the Equality Act; it argued that that underlying condition was the cause of alcoholism. 23.2. The submission by Inspector Lee said that the claimant’s condition was medically well documented and was known about and had been disclosed to the respondent. 23.3. Inspector Lee’s submission referred back to the MG14 which the claimant had produced for the previous incident. It also included the chain of emails between the claimant, Sergeant King and Ben Baldwin about the production of that previous MG14. 23.4. It also referred to the contents of the documents which described the claimant’s long-standing mental health issues going back several years.[24]I am satisfied that the documents which AC Gray had before her on 2 March, included those itemised on page 239 of the bundle. Those were received by the claimant and his representative prior to the hearing. They were received around about a week before the hearing according to the claimant’s recollection. However, in any event, it was before the hearing. The claimant and his representative knew what documents AC Gray had received from the other side. In addition, they knew that she had whatever documents which they submitted and those are the documents from pages 208 to 237 of this bundle. Again, the claimant and his representative knew that they had the opportunity to submit their own documents that they wanted to be taken into account at the hearing.[25]The notes of the outcome of the hearing are in the bundle starting at page 171. In that document, as part of her findings, AC Gray referred to the requirement to take into account human rights and equality legislation. She also referred to the Regulation 54 statement and she referred to the evidence that she had received from the claimant. One of her findings was that it was apparent from the evidence submitted in support of the claimant that he suffered from a number of health issues.[26]The claimant attended the hearing with his representative. The decision, which was communicated to the claimant on the same day (2 March 2023), was that he was dismissed with immediate effect.[27]Following the hearing the claimant submitted an appeal. That appeal is at page 179 of the bundle and it was on 20 March. He referred to Occupational Health evidence which, in his opinion, should have been presented to the misconduct hearing but had not been. He mentioned his belief that he should be regarded as having a disability under the Equality Act and he referred back to medical evidence which he believed the respondent had previously seen and which ought to have been taken into account but which, in his view, had not been taken into account on 2 March.[28]The appeal was rejected. There was a preliminary decision on 8 June which is in the bundle and there was a final decision around 26 June although that is not in the bundle.[29]The claimant has given oral evidence today, as I have mentioned, without a written witness statement. He says he was told by his union representative that he would have three months from 26 June to present a claim. There were orders for disclosure of documents and for written statements for this hearing. The claimant understood, in my view, that he had been ordered to produce a written statement. In any event, there is a statement from Inspector Lee but Inspector Lee has not attended the hearing to give evidence on oath and be cross examined. The statement from Inspector Lee does not state that he gave the claimant advice about time limits for Equality Act claims. Still less does it say that he advised that the time limit clock would start running on 26 June. There is no written document, no contemporaneous written documents, to support the claimant’s account that he was given misleading advice by the union around about nine months or so ago.[30]I am not persuaded, on the balance of probabilities, that the claimant was given misleading advice by the union. I do not suggest that the claimant has tried to be dishonest on oath today but the evidence, given the passage of time and the lack of corroboration, is not sufficient. Even if I am wrong about that, on the claimant’s own account, the comments from Inspector Lee cannot have occurred until some time after 24 August. I conclude this because the claimant’s account was that the conversation between him and Inspector Lee was one in which the claimant suggested the correct date for the time limit to run from would be 24 August (based on new information the claimant received that day) and Inspector Lee replying to him to say (words to the effect of) “No, that’s not true, it wouldn’t be from 24 August, it would be from 26 June”. So, even if the claimant is right that Inspector Lee told him that the date for time to run from was 26 June, even if that happened on exactly 24 August (rather than later), the Claimant was already more than two and a half months out of time because the time limit had expired on 1 June.[31]The claimant also says that new information came to light on 24 July; he says that is when he read the bundle of document that he had received for the hearing in more detail for the first time and he noticed in the bundle that document which he believed showed that Mary Coller had been willing to receive an MG14 from him.[32]The Claimant’s account today is that, until he read that document, he had simply assumed that she had not wanted to have any mitigation or any version of events from him. He says that he followed up with his union representative to find out whether Mary Coller, DCI O’Connor and Commander Savell had known that he was off work with depression and it was only on 24 August that the union representative confirmed to him that they had all known that.[33]The other fact that the claimant alleges is that he had been hoping to receive assistance from the Federation with legal costs or legal support and he only found out shortly before he submitted the claim form that that would not in fact be forthcoming.
The law
[34]The law that I have to take into account is as follows:[35]S.123 of the Equality Act 2010 (“EQA”) deals with time limits. (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 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. (3) For the purposes of this section— (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 on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[36]In my assessment this is not a case where I need to consider, in detail, the “continuing act” provisions. 36.1. It is my assumption for today’s purposes that if a final hearing were to decide that the decisions on 2 March 2023 were discriminatory then the tribunal would also be satisfied that any successful complaints about any prior incidents of discriminatory conduct (as per the list I mentioned at the outset), would be found to be part of a continuing act. 36.2. However, there is no basis for any decision that there would be an act that continued to 3 March 2023 or any later than that. So the relevant date is 2 March.[37]In accordance with s.123, for incidents that occurred on 2 March, the time limit would expire on 1 June, three months less one day later on. That would be subject in an appropriate case to the early conciliation extension. However, the claimant did not contact Acas until September 2023 and therefore there is no extension of time for early conciliation.[38]In relation to an omission, the time for an omission starts running from when the person is treated as deciding not to do the thing, to make the omission. In the absence of evidence to the contrary, there taking to be decided to do that either when they do something that is inconsistent with doing it or, alternatively, upon the expiry of the period in which they might have been expected to do it.[39]When a claim is not presented within those time limits, the tribunal, under s.123(1)(b), may extend the period of time and may give such other period as the tribunal thinks just and equitable. Parliament has given the tribunals a broad discretion to apply that particular test. Parliament has not decided to produce a specific list of factors comparable to, for example, s.33 of the Limitation Act. The case law does emphasise that the type of factors that can be taken into account include the length of and the reasons for the delay, the extent to which because of the delay the evidence is likely to be less cogent than if the claim had been brought in time and whether any conduct of the respondent has caused the delay.[40]Tribunals should take into account that time limits under the Equality Act are relatively short and that is a factor to be considered and is potentially something that can count in the claimant’s favour. At the same time it is also important to be aware that time limits are there for a reason. It is not the default position that time limits should be extended, rather it is the default position that time limits should be upheld, and it is for the claimant to show that there are just and equitable reasons to extend time.[41]That is not the same thing as requiring the claimant has to show that there were good reasons for submitting the claim late. Clearly, if the claimant is able to show that he had good reasons for submitting the claim late then that will be a factor in the claimant’s favour. However, where there is no good reason for the lateness of the claim, then that is not fatal to whether an extension will be granted, it is just one of the factors to be taken into account and in a suitable case it might be outweighed.[42]Ultimately, there is a balancing exercise which includes taking account of the prejudice to the claimant if time is not extended but also the prejudice to the respondent if time is extended.[43]Time starts to run for specific acts and specific decisions from the date when the employer took the decision, or did the act, that is complained of, not from when the decision is communicated to the employee, or he found out about the conduct. Obviously, however, the fact that a time limit clock has started running before the Claimant became aware of the facts (or all of them) upon which a claim could be based will be relevant to the exercise of the discretion to extend time.[44]My analysis in this particular case is as follows: Analysis and Conclusions[45]I do accept that if I extend time for the complaints about dismissal then the respondent will be prejudiced. Not only would it have to deal with the complaints about the events of 2 March and immediately beforehand but the claimant’s claims go back to September 2022 at least, which is a year before contacting ACAS.[46]To be in time (without needing an extension), the Claimant would have had to contact ACAS by no later than 1 June 2023, and then submit a claim within whatever extended deadline applied from having done so.[47]I take into account that the Claimant did appeal, and that he did not receive the final appeal outcome until 26 June 2023. He did, however, receive the determination on 8 June 2023 that stated that the view of the decision-maker was that the appeal should be dismissed, subject to further representations. Not only did the Claimant fail to contact ACAS within 3 months of the dismissal (so by 1 June), he also failed to do so within a period of 3 months starting from 8 June. I accept he did contact ACAS (on 13 September 2023) less than 3 months after 26 June 2023.[48]As I have already said in the findings of fact, I am not persuaded that the reason that the claim was presented late was because the claimant was misled by the union about the dates. The evidence does not convince me that he was actually misled at all but, even if he was misled, then he was not misled until on or after 24 August by which time the time limit had already long expired. At most, if true, the claimant’s explanation about being misled about the date would account for the delay between 27 September when the ACAS early conciliation certificate was issued and 5 October when he presented the claim.[49]The claimant also says that he had been waiting to hear about legal representation. There is no documentary evidence about that. In any event, the claimant had had since 2 March 2023 to pursue the union about providing him with legal advice and assistance or funds for legal advice and assistance. I am not satisfied that the union caused a delay. There is no evidence about when the claimant first asked the union to provide him with legal advice or how long it took from when he asked until they answered. Again, on the claimant’s account, it seems that it was not until after 24 August that he sought to obtain legal representation at the union’s expense. So again, at most, that might explain the delay from 24 August to 5 October; however, by 24 August 20243 the claim was already out of time. 24 August is more than 5 months after the dismissal outcome was given to him, and more than 2 months after the (final) appeal outcome was given.[50]My assessment is that the claimant did not receive any new information - that was relevant to a decision about whether or not he presented a claim - in either July or August 2023.[51]The claimant was already aware that he had not actually submitted a MG14 to Mary Coller. So if he believed (as he says) that she simply did not want one, and if he was going to bring a claim (on the basis that he ought to have been asked to provide one, but there was a discriminatory failure to make a request), he had all the information he needed to do that. He had that information certainly by 2 March (when he was dismissed). However, he actually had it much earlier than that. He had all the information he needed to present a claim - on this basis - from around early November 2020 onwards. He had legal advice after those dates. The submissions made on his behalf during the process, referred to the Equality Act, and referred to the Claimant allegedly having a disability. A claim based on a theory that an MG14 should have been requested (and was not requested) could have easily been made.[52]In terms of whether or not the relevant people (Mary Coller, DCI O’Connor and Commander Savell) were aware about the reasons for the claimant’s absence, I am not satisfied the claimant had any reason to assume that they were unaware that his absence was because of depression, or that he did assume that they were unaware.[53]Therefore, when the Claimant received the confirmation from Inspector Lee on 24 August that they did in fact all know that how was absent because of depression, I am not satisfied that that was new information to him.[54]In any event, even if it were new information to the Claimant, I am not persuaded by the Claimant’s suggestion that he did not issue a claim before then because he assumed that they had been unaware of the reason for his absence. Even if it was the Claimant’s genuine belief that they were unaware of the reasons for his absence, I do not accept that that was a cause, or contributory factor, to the Claimant’s reasons for not presenting the claim on time (by doing so within three months of 2 March, or, at the least, contacting ACAS within that period).[55]I have taken into account the information that I have about the claimant’s health. I do not doubt that the claimant had genuine health issues. I am satisfied – and the respondent does not dispute it - that the Claimant was off work for genuine sickness absence reasons from 30 June 2022 until 2 March 2023.[56]The claimant was well enough to attend the hearing on 2 March and he was well enough to lodge his appeal He was well enough to investigate how to complain about the barrister who represented the authority at the hearing. He did investigate that and he was well enough to make that complaint. He was also well enough to complain about Mary Coller once he read what he believed she had said about him. I am not suggesting that the Claimant was in perfect health at the time; on the contrary, I accept he was not (though his health was improved in comparison to 2022). However, the intellectual and physical exertion required to submit a claim to an employment tribunal is not greater than that required to do the other things mentioned in this paragraph. I am satisfied that there was no health issue which prevented the claimant from presenting the claim during the relevant period (2 March 2023 to 1 June 2023).[57]The mere fact alone that there might not have been a good reason for the lateness of the claim is not in itself fatal but it is relevant and I have to weigh that against the prejudice to the respondent. If I were to extend time the respondent would have to defend its actions in dismissing the claimant (and in the process prior to dismissal) even though the claim was presented more than four months late. I am satisfied that the balance of prejudice is against the claimant in this particular case and that therefore I should refuse to extend time and that is my decision.[70]Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.[71]Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was and shall set out why reconsideration of the original decision is necessary.[72]Process(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked(including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application. Page 1 of 5(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. … 2. The Tribunal has discretion to reconsider a judgment if it considers it in the interests of justice to do so. Rule 72(1) requires the judge to dismiss the application if the judge decides that there is no reasonable prospect of the original decision being varied or revoked. Otherwise, the application is dealt with under the remainder of Rule 72. 3. In deciding whether or not to reconsider the judgment, the tribunal has a broad discretion, which must be exercised judicially, having regard not only to the interests of the party seeking the reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation. 4. The reconsideration rules and procedure are not intended to provide an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way. They are not intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed (with or without different emphasis). Nor do they provide an opportunity to seek to present new evidence that could have been presented prior to judgment. 5. Under the current version of the rules, there is a single ground for reconsideration — namely, “where it is necessary in the interests of justice”. In Outasight VB Ltd v Brown 2015 ICR D11, the EAT explained that the revision to the rules had not been intended to make it more easy or more difficult to succeed in a reconsideration application. In the current version of the rules, it had not been necessary to include more specific grounds for an application because an application relying on any of those other arguments can still be made in reliance on the “interests of justice” grounds. 6. When deciding what is “necessary in the interests of justice”, it is important to have regard to the overriding objective to deal with cases fairly and justly, which includes: ensuring that the parties are on an equal footing; dealing with cases in ways which are proportionate to the complexity and importance of the issues; avoiding unnecessary formality and seeking flexibility in the proceedings; avoiding delay, so far as compatible with proper consideration of the issues; and saving expense. 7. The situation remains, as it had been prior to the 2013 rules, that it is not necessary for the applicant to go as far as demonstrating that there were exceptional circumstances justifying reconsideration. There does, however, have to be a good enough justification to overcome the fact that, when issued, Page 2 of 5 judgments are intended to be final (subject to appeal) and that there is therefore a significant difference between asking for a particular matter to be taken into account before judgment (even very late in the day) and after judgment. As was stated in Ebury Partners Uk Limited v Mr M Acton Davis Neutral Citation Number: [2023] EAT 40 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. The Claimant’s application 8. The Claimant submitted an email dated 21 August 2024, within the relevant time limit, seeking reconsideration. 9. Judgment had been given orally on 28 May 2024, and a written judgment was produced that day, and sent to parties on 5 July 2024. A request for written reasons was made, and those reasons were sent to parties on 8 August 2024. 10. The Claimant requested reconsideration on 21 August, and followed that up with chasers on 13 September, 19 September and 3 October 2024. These items were referred to me, for the first time, on 7 October 2024. The chasers contained no additional arguments in favour of reconsideration. 11. The Claimant says that his witness, Aaron King, told him that he did not think his attendance was necessary, and that the Claimant relied on that assurance. None of my decisions were based on any failure to accept the accuracy of what Aaron King had written. Therefore, Aaron King’s nonattendance is not a reason for me to revisit any of the findings of fact. 12. There is an allegation that the Respondent's representative, Mr Maton, “blocked” the Claimant from using Commander Savell or Mary Coller as witnesses. Even if I assume, for present purposes, that that is factually accurate, the application contains no details of what Commander Savell or Mary Coller might have said at the preliminary hearing that might have made any difference to my decision. Commander Savell’s and Mary Coller’s nonattendance, and the fact that I had no written statement from either of them, are not reasons for me to revisit any of the findings of fact. 13. The Claimant disputes the findings of fact which I made about when (if at all) his Federation representative told him that the time limit clock began to run from 26 June 2024. If the Claimant has evidence about that topic, he could and should have ensured that it was presented at the preliminary hearing, for example, by asking Inspector Lee to comment on it in his statement. Page 3 of 5 13.1. To the extent that the application is simply based on disagreement my findings (which were based on the Claimant’s oral evidence), there is no good reason for me to revisit those findings; the reasons for them are explained already in the written reasons document. 13.2. To the extent that the application implies that the Claimant might have some other evidence, which is something other than simply his own recollection of oral discussions, he has neither attached a copy of that evidence to his reconsideration application, nor provided a good reason that the evidence was not presented at the preliminary hearing. 13.3. To the extent that the Claimant argues that the Respondent's representative is responsible for the Claimant’s failure to (allegedly) understand what was required, this is something that was discussed at the beginning of the hearing: 13.3.1. The Respondent's representative had stated that the parties were not required to draft “statement of issues”. (Email of 16 April 2024 at 15:43). 13.3.2. However, as discussed at the time, there were two separate orders (send to parties on 6 February 2024): one was for “draft statement of issues” if both parties were professionally represented; one was for "full written statements of the evidence they and their witnesses intend to give at the hearing” 13.3.3. Even if the Respondent's representative was incorrect to say that no draft “statement of issues” was required (and, in fact, the Claimant was not legally represented, so the order was not triggered), I was satisfied, notwithstanding the Claimant’s submissions at the time to the contrary, that the Claimant had known that there was an order for him to provide a witness statement (and that the order for statements did not simply refer to people other than him). 13.3.4. I did not accept that the Claimant was misled by the Respondent in relation to the need to provide a statement. 14. The Claimant’s argument on 21 August 2024 that he was misled by the Respondent’s representative adds nothing to the points that were already the subject of a more detailed discussion at the hearing. 15. However, in any event, after I told the Claimant that I did not agree that he had been misled by the Respondent, I told him that I would consider postponing the hearing to allow (i) King and Lee to attend the hearing and (ii) the Claimant time to prepare a written statement. The Claimant stated that his preference was to go ahead on the day, giving evidence-in-chief orally, Page 4 of 5 without a written statement, and for me to read King’s and Lee’s statements, giving them such weight as I saw fit. 16. The Respondent also stated that it was not seeking a postponement. I informed the parties that I would not postpone of my own initiative, and would instead allow the Claimant permission to give evidence without a statement. 17. In any event, even if the parties had produced a list of issues, then that would have been something different to the agreed facts document that the Claimant referred to in his reconsideration application. Furthermore, even on the face of the reconsideration application, if the Claimant knew that there was no agreed facts document, then that is not a sensible reason for him to have omitted to seek to provide evidence to prove a relevant fact. 18. For the reasons stated above, having considered the Claimant’s application, I am satisfied that there is no reasonable prospect of the original decision being varied or revoked, and the application is refused.
The law
[1]The complaint of unfair dismissal is dismissed upon withdrawal.[2]The complaints of discrimination are dismissed because they were presented out of time, and it is not just and equitable to extend time, and therefore the Tribunal does not have jurisdiction.[3]These decisions mean that the entire claim is at an end.