Mr D Ludhra v Morgan Sindall Construction Infrastructure Ltd: 3313464/2020

EMPLOYMENT TRIBUNALS

Case No 3313464/2020

Between

Mr D LudhraClaimant

Morgan Sindall Construction Infrastructure LtdRespondent

Before

Employment Judge R Wood

Miss Wheeler (instructed by Counsel) for respondent

Date 30 May 2023

JUDGMENT

[1]The application to amend the ET1 has been granted.

REASONS

Introduction

[1]In brief, the claim involves a Claimant who was engaged by the respondent in 2019 as an apprentice. It is the status of the apprenticeship contractor which is likely to be the primary issue between the parties at the final hearing. The claimant was dismissed from that apprenticeship on 15 July 2020. The ET was submitted on 12 November 2020, which is made up of the pro-forma ET 1 form, as well as an extensive particulars of claim to which the form makes express reference. I am invited to look at both documents together as constituting the claimant’s pleadings in this case. No issue is taken by the respondent in respect of this approach. In terms of the pleadings, nothing further happens until there is an application to amend the ET1 by the claimant (or what is subsequently treated as an application to amend) on 3 November 2021, which is in the days preceding the case management hearing on 5th November 2021. This meant that the application was submitted about 12 months after the ET1. The claim, in summary, is for breach of contract and/or wrongful dismissal. What is said by claimant is that he was dismissed in a way which did not comply, either by the mere fact of dismissal, or by reason of the procedure adopted, with the terms of his engagement as an apprentice. There is no issue that the claimant was engaged, ostensibly at least, under an approved English apprenticeship under ASCLA. I say ostensibly, because I understand that ASCLA is referred to expressly in the relevant contract documents, although I have not seen them. This point is not disputed by the claimant. Therefore, on its face, the contract seeks to apply ASCLA. The point that the claimant makes, and which forms the subject of the amendment sought, is that the contract doesn’t comply with the various requirements of ASCLA. As a result, it is submitted that the contract should be construed as a common law contract of apprenticeship. This is potentially significant since the terms under which an apprentice can be dismissed prior to the full term of their contract under a common law arrangement are much more restrictive than they would be under ASCLA. This might have a significant impact on the outcome of the case, and in particular on the scope of the remedy sought.

[2]Any application to amend a claim in this context is to be subject of the exercise of a judicial discretion, which is guided by the matters set out in Selkent Bus Co Limited v Moore

[1996] IRLR 661

. Such a discretion should be exercised in a manner which satisfies the requirements of relevance, reason, justice, and fairness inherent in all judicial discretions. In particular, I am required to look at the nature of the amendment sought, the applicability of statutory time limits, and the timing and nature of the application.

[3]I also have regard to the Tribunal overriding objectives including saving expense, avoiding delay, avoiding unnecessary formality, and seeking flexibility in the proceedings, and so on.

[4]My view is that this is an application properly made and I allow the application. It is not an easy decision. My provisional view had been that the proposed changes did not amount to an amendment requiring the permission of the Tribunal. I regarded it as a clarification of the existing cause of action, namely breach of contract, which is clearly pleaded in the ET1. The extended particulars of claim spend a lot of time examining and pleading certain breaches of the apprenticeship agreement. However, on reflection, Miss Wheeler is correct, in that what the ET1 does not do is to allege the claimant’s contract fails to comply with the requirements of ASCLA, and that by reason of any breaches, the agreement must constitute a common law apprenticeship agreement. In the application to amend, that is more specifically dealt with. On balance, that does amount to a different type of complaint, albeit a breach of contract, the original ET1 having limited itself to a criticism of the procedure adopted in dismissing the claimant. Having said that, the amendment sought is a relatively monitor one. In my view there would be in any event a likelihood that any tribunal required to look at the nature of the contract and the alleged breaches, would be required to look at the implications of any breach, and might be required of its own volition to look into the possibility that by reason of the way the contract should properly be construed, that it is a common law contract of apprenticeship. The proposed amendment is not significant in the sense that compliance with ASCLA was likely to have been a matter which the tribunal would have wished to, and as a matter of law been required to, look at in any event. So, I take this into account when exercising my discretion.

[5]Looking at the other factors I am required to consider, I have regard to the applicable time limits for this sort of claim. There is no doubt that the amendment falls well outside the statutory time limits of 3 month from the date of the dismissal (the alleged breach of contract in this case). It is in the region of 12 months out of time. Nonetheless, I find that it was not reasonably practicable for the amendment to have been made within time, and further that it is reasonable to extend time to encompass this application. As I have already stated, this is a difficult area of law. The question of the nature of a contract of apprenticeship, and the implications as a matter of law that flow from the proper construction of such an agreement, is not well trodden territory even for experienced lawyers. I therefore have some sympathy for a representative and/or litigant who is not legally trained, when attempting to properly particularise a breach of contract case not this type. The extent that the claimant has failed to properly state his claim in the ET1 is, in my view, limited and subtle. It is a failing which relates as much to the effect of the breach of contract, as it is to the nature of the breach. In my view there is significant mitigation for a non-legally trained party who gets that wrong. I do exercise caution when it comes to applying different standards to those without legal training. However, in my judgement, it is something which I can properly take into account in this case.

[6]Looking at other the other issues raised by the resplendent in its submissions, I cannot find that there are no reasonable prospects of success for the way the case is put if amended. I have not seen the contract of apprenticeship. It is therefore impossible for me to come to any view a about the merits of claim. I have not taken this into account. I should also add, that in relation to prejudice, there is always some potential prejudice to a respondent who is the subject of an amended claim, if there is a new cause of action or, as in this case, one whose scope is expanded to some extent. However, I do not think prejudice is significant in this case. There is some prospect of a slightly longer hearing. However, as I have said, most of the issues would have been touched upon in any event. There will be no need for additional witness evidence as a result of the amendment. There may be some broadening in the scope of compensation. However, having taken all of the issues relevant to Selkent in the round, I take the view that it is appropriate to allow the claimant’s application to amend.”

Introduction

[1]The Claimant was employed by the Respondent from 9 September 2019 as part of an apprenticeship training scheme in the Respondent’s aviation business unit based at Heathrow Airport. The apprenticeship was for a term of 24 months with on-the-job training and formal educational training in multiple week blocks at CITB National Construction College, Bircham Newton. On 7 July 2020, the Claimant went off sick. The Claimant left site at approximately 1 pm and went home without informing the Respondent. The Respondent contacted the Claimant by text at approximately 4pm. The Claimant responded to the Respondent the following day in the early hours of the morning by text on 8 July 2020. By letter dated 15 July 2020, the Claimant was dismissed by reason of misconduct. The Claimant contacted ACAS on 1 October 2020. The ACAS early conciliation certificate was issued 28 October 2020. The Claimant presented his claim form for wrongful dismissal dated 12 November 2020. Claims and Issues

[2]The parties had both provided a list of issues. It appeared that the list of issues could not be agreed due in some part to the Claimant raising a claim of unfavourable treatment on the grounds of being a fixed term employee. However, when I asked the Claimant’s representative, Ms Sharma what was the basis of this additional claim, as I had understood from the preliminary hearing with EJ Wood’s on 24 May 2022 that the claim for unfavourable treatment on the grounds of being a fixed term employee had been withdrawn. Ms Sharma explained to me that it was brought as a response to the Respondent’s assertion that the Claimant was on a statutory apprenticeship agreement. Ms Sharma accepted that the claim was out of time and that she was not proceeding with pursuing the claim.

[3]It seemed to me that the list of issues by both parties contained elements that were extraneous in nature. With both parties’ assistance, we narrowed the issues to produce a list both parties agreed with.

[4]The agreed list of issues was:4.1 What type of contractual arrangement applied to the Claimant whilst employed by the Respondent?

(a) Was the arrangement the Claimant was engaged under a statutory apprenticeship agreement under section 32 of Apprenticeships, Skills, Children and Learning Act 2009 Act (“Act”)?

(b) If so, did it also satisfy conditions specified in regulations made by the Secretary of State (The apprenticeships (Form of Apprenticeship Agreement) Regulations 2012)?

(c) If it was not a statutory apprenticeship agreement under section 32 of the Act, was it a common law contract of apprenticeship?

(d) If it was not a common law contract of apprenticeship, was it a contract of employment?

4.2 Would the Claimant still have been dismissed if the proper disciplinary process had been followed?

4.3 If yes, how long would the proper disciplinary process have taken to complete given the special provisions for apprentices written into the CICJ Working Rules Agreement and nature of the misconduct?

4.4 If the Claimant was engaged under a contract of apprenticeship, was it possible to terminate the contract on the basis of:

a. Claimant’s conduct?

b. Redundancy?

4.5 If the Claimant was not employed under a contract of apprenticeship but a contract of employment, was the Claimant wrongfully dismissed?

4.6 If the Claimant was employed under a statutory apprenticeship agreement under section 32 of ASCLA 2009 and the Claimant was dismissed in breach of that agreement, what compensation (if any) should be awarded to the Claimant in all of the circumstances?

4.7 If the Claimant was employed under a common law contract of apprenticeship, what compensation (if any) should be awarded where the Claimant’s contract was terminated before completion of the apprenticeship?

4.8 Did the Claimant take all reasonable steps to mitigate his losses? Hearing

[5]I had an indexed bundle of 1076 pages and an authorities bundle of 373 pages which included the Respondent’s written submissions. I also received a skeleton argument from the Claimant. I heard evidence from the Claimant, Mr Ludhra, the Claimant’s mother Ms Sharma and the HR business Partner for the Respondent, Ms Graham.

[6]Following enquiry regarding reasonable adjustments, I was told by the Respondent that Ms Graham suffered from epilepsy and was taking strong medication which made her drowsy. I was asked to make reasonable adjustments of regular breaks and take into consideration that medication affected her concentration and that the witness may need questions repeated. I took regular breaks throughout the hearing asking Ms Graham if she needed breaks. Finding of Facts

[7]The following findings are made on a balance of probabilities. All references in square brackets are a reference to the bundle page numbers.

[8]In July 2019, the Claimant answered an advert for a construction operations apprentice with the Respondent [428]. The role was for £7.70 ph for 39 hours per week. 8 of those hours would be to attend training college. The 8 hour per week were collated together in multiple week blocks where the Claimant was to attend the National Construction College. The actual dates are set out in an email dated 17 September 2019 to the Claimant [530].

The Law

[9]On 5 August 2019 the Claimant signed a document entitled “Principal Statement of Terms and Conditions of Employment for Apprentice CIJC– Working Rule Agreement Aviation Business Unit”, “the principal statement”. The principal statement stated that the Claimant’s hours were 39 hours per week. The Claimant’s payslips show the Claimant did, on occasion do overtime. The document said “[t]his agreement is an approved English apprenticeship agreement within the meaning of the apprenticeship, skills, children and learning Act 2009, sA1(3). It is a contract of employment and is not to be treated as being a contract of apprenticeship.” [434] This document was not drafted by Ms Graham. Ms Graham did not know how this particular agreement came about but accepted that the agreement was not the appropriate agreement to give to the Claimant as his apprenticeship was not an approved English apprenticeship. I find that the agreement given to the Claimant was not an approved English apprenticeship.

[10]The Claimant also signed an Apprentice training agreement dated 5 November 2019. This agreement was for the purposes of providing the educational elements of the apprenticeship arrangement. The apprenticeship training agreement stated that the apprenticeship was to be from 11 November 2019 to 12 July 2021.

[11]There was also a tri-party commitment statement between the Respondent, Claimant and the training provider CITB. This Commitment Statement was signed by the Claimant on 7 November 2019. The commitment statement stated that the employment hours per week were 32 hours per week. The off-site training was to be eight hours per week.

[12]It is the case that the Claimant’s contract of apprenticeship started 9 September 2019 and was due to finish on 9 September 2021.

[13]The Claimant believed that he was being employed with a view to qualifying as a level II civil engineer. However, the Claimant was in actual fact employed by the Respondent to carry out training to become a qualified grounds worker. In essence, the Claimant was an apprentice ground worker.

[14]The Claimant enjoyed the educational elements of his apprenticeship and was by all accounts proceeding well in his studies. However, the Claimant’s commitment to the practical aspect of his apprenticeship, that is, working on site at Heathrow was less positive. The Respondent had concerns about the Claimant’s punctuality and attitude towards his work. I find that the Claimant was not motivated in his practical work as much as he was in his academic work. The Claimant was late on occasion. The Claimant did not pursue an application to work airside.

[15]On 7 July 2020, the Claimant left site at approximately 1pm because he felt unwell. I find that on 7 July 2020 the Claimant could have called or texted his employer to let them know that he had left site and that he was unwell and was being picked up by his father who would take him home. There was nothing preventing the Claimant from making this phone call whilst waiting for his father to come and pick him up or at any point before the end of the day.

[16]After 8 July 2020, the Claimant did not contact the Respondent again regarding his absence from work even though the Claimant was well aware that he was obliged to do so.

[17]The process for dealing with the Claimant’s misconduct was contained in the Working Rules Agreement. However, as the Claimant was an apprentice, the Working Rules Agreement required the employer to take a less stringent approach. The Claimant’s misconduct was significant but was not out of character for that of an apprentice. As is evidenced by the fact the Respondent accepted that the other two apprentices were also guilty of attitudinal issues and punctuality issues. In contravention of the Working Rules Agreement the Claimant was written to by letter dated 15 July 2020 and dismissed for misconduct.

[18]In March 2020 the country experienced lockdown due to Covid 19. The aviation industry was particularly affected, and the Respondent closed down all sites at Heathrow until June 2020. The Respondent re-opened sites, but the Respondent was told its scope of work previously at £60 million were being reduced to approximately 10% of that by the end of the year, with Heathrow confirming that the Respondent was not to be awarded any more contracts.

[19]In April 2020 the Respondent began collective consultation with all employees in the aviation business which included the Claimant. It was proposed that the Claimant would have a number of meetings before giving notice of dismissal if the Claimant could not be redeployed. The Claimant was not offered redeployment in Luton for an apprenticeship role. The Claimant was invited to consider a role in Luton which was not an apprenticeship role. The role was more than 5 miles from where the Claimant lived. The Claimant had indicated when asked about what roles he would consider that he did not want any roles more than 5 miles away. At that time the Claimant did not drive nor did the Claimant own or have access to a car. The Claimant would not and did not consider any roles that he could not have travelled to by public transport. The Respondent used its best endeavours to find the Claimant an alternative apprenticeship, but there was none. By the end of June 2020, the Respondent had already made approximately 50 people redundant in the aviation business. The Claimant did not complain in these proceedings that he was not given sufficient notice of the redundancy. I find that the Claimant was given reasonable notice of the redundancy.

[20]In July 2020 the Respondent’s business was de-mobilising. The Claimant was off sick on 6 July when it was proposed he would have his first consultation meeting. The Claimant’s fellow apprentices also did not have the consultation meeting with the Respondent because the Respondent had decided that all three apprentices would be dismissed. It was proposed that the Claimant and his fellow apprentices would have had two meetings before notice of dismissal would have been given. It was proposed that dismissal would take effect on 31 July 2020. The aviation business did close down. The role of ground worker was specific to the Respondent’s aviation business. There were no other ground workers in the rest of the Respondent’s business. There were no other apprenticeships for ground workers in the rest of the Respondent’s business. There was no other work relevant to the Claimant’s apprenticeship available for the Claimant to undertake. It has since transpired that after 25 years in the sector, the Respondent’s aviation business closed in 2020 and has been closed ever since. Law

[21]I was provided with an authorities bundle which contained various appellate and first instance cases and statutory provisions which I shall refer to. I am grateful to both Ms Sharma and Ms Barry for their helpful and extensive summary of the case law and legislation in this area. Statutory provisions

[22]The relevant statute covering statutory apprenticeships is the Apprenticeships, Skills, Children and Learning Act 2009 Act. “Act”.

[23]Section A1(2) of the Act provides: “An approved English apprenticeship is an arrangement which(a) takes place under an approved English apprenticeship agreement, or

(b) is an alternative English apprenticeship, and in either case satisfies any conditions specified in Regulations made by the Secretary of State.”

[24]As it is agreed by the parties that the principal statement does not comply with the approved English apprenticeship agreement, the relevant law to consider is that which applies to alternative English apprenticeships.

[25]On 26 May 2015 – before the Claimant entered into his apprenticeship, Chapter 1 of the Act became headed “APPRENTICESHIPS: WALES”. In essence section 1 of the Act in respect of England was repealed, and the heading preceding section 32 became “Apprenticeship agreements: Wales”. However, sections 1 & 32 of the Act as it applied to England was saved by the transitional provisions set out in the 2015 Order which were in force at the time of the Claimant’s employment.

[26]Deregulation Act 2015, section 115 says: “(9) The Secretary of State may by order made by statutory instrument make such transitional, transitory or saving provision as the Secretary of State considers appropriate in connection with the coming into force of any provision of this Act (other than transitional, transitory or saving provision that the Welsh Ministers have power to make under subsection (8))”

[27]By operation of s115(9) of the Deregulation Act 2015, the Secretary of State made the Deregulation Act 2015 (Commencement No.1 and Transitional and Savings Provisions) Order 2015/994. The “Order” which commenced on 26 May 2015.

[28]Section 2 of the Order provides the definition of saved provisions and includes ss 11-12, 32-36 of the Act to the extent that they apply in connection with the provisions mentioned in paragraphs (a)- (d). Paragraph (c) is relevant as it refers to sections 13 to 15 and 17 of the Act apprenticeship frameworks: England.

[29]Section 12 of the Act states: “Apprenticeship frameworks: interpretation(1) In this Chapter, “apprenticeship framework” means a specification of requirements, for the purpose of the issue of apprenticeship certificates, that satisfies subsection (2).

(2) The requirements specified must— (a) be at a particular level stated in the specification, and (b) relate to a particular skill, trade or occupation included in an apprenticeship sector stated in the specification.”

[30]Section 32 sets out the Meaning of “apprenticeship agreement. “(1) In this Chapter, “apprenticeship agreement” means an agreement in relation to which each of the conditions in subsection (2) is satisfied. (2) The conditions are—(a) that a person (the “apprentice”) undertakes to work for another (the “employer”) under the agreement;

(b) that the agreement is in the prescribed form;

(d) that the agreement states that it is entered into in connection with a qualifying apprenticeship framework. (3) The power conferred by subsection (2)(b) may be exercised, in particular— (a) to specify provisions that must be included in an apprenticeship agreement; (b) to specify provisions that must not be included in an apprenticeship agreement; (c) to specify all or part of the wording of provisions that must be included in an apprenticeship agreement. (4) Where an agreement states that it is entered into in connection with an apprenticeship framework (“the relevant framework”) that is not a qualifying apprenticeship framework, subsection (2)(d) is to be taken to be satisfied in relation to the agreement if— (a) at a time within the period of three years ending with the date of the agreement, the relevant framework was a qualifying apprenticeship framework; (b) at the date of the agreement, the apprentice has not completed the whole of a course of training for the competencies qualification identified in the relevant framework, (c) before the date of the agreement, the apprentice entered into an apprenticeship agreement (“the earlier agreement”) which stated that it was entered into in connection with the relevant framework, and (d) at the date of the earlier agreement, the relevant framework was a qualifying apprenticeship framework. (5) In subsection (4)(b), the reference to a course of training for the competencies qualification is to be read, in a case where the person follows two or more courses of training for the competencies qualification, as a reference to both or all of them. (6) An apprenticeship framework is a “qualifying apprenticeship framework”, for the purposes of this section, if it is—[...] (b) a recognised Welsh framework.”

[31]Section 35 of the Act states: “35 Status(1) To the extent that it would otherwise be treated as being a contract of apprenticeship, an apprenticeship agreement is to be treated as not being a contract of apprenticeship.

(2) To the extent that it would not otherwise be treated as being a contract of service, an apprenticeship agreement is to be treated as being a contract of service.

(3) This section applies for the purposes of any enactment or rule of law.” Relevant Authorities

[32]The common law of apprenticeship has been around since time immemorial. A contract of apprenticeship falls within the definition of a contract of employment in section 230(2) of the Employment Rights Act 1996.

[33]The authorities confirm that a contract of apprenticeship is of a special character as its essential purpose is training, the execution of work for the employer being secondary (Dunk v George Waller & Sons

[1970] 2 QB 163

[34]It is an essential characteristic of the relationship that education and training is provided in the trade or profession and that the apprentice agrees to work for, and follow all reasonable instructions of, the employer (Edmonds v Lawson and another

[2000] EWCA Civ 69

[35]Apprentices employed under a contract of apprenticeship have additional rights on termination of the employment. A contract of apprenticeship is not terminable at will as a contract of employment is at common law.

[36]Wallace v CA Roofing Services Ltd

[1996] IRLR 435

was a decision of the Queen’s Bench Division of the High Court. It concerned a contract of apprenticeship for a sheet metal worker who was dismissed on grounds of redundancy. It was held that the contract of apprenticeship was a distinct entity known to the common law. Its first purpose was training; the execution of work for the employer was secondary. The contract was for a fixed term. Ordinarily, it could be terminated only if the employer’s business ceased as a going concern, or changed so fundamentally that the apprentice could no longer be taught the trade for which he was engaged. Except where these conditions applied, a redundancy situation could not terminate a contract of apprenticeship, nor did the kind of personal unsuitability which might ordinarily justify the dismissal of an employee.

[37]Whiteley v Marton Electrical Ltd

[2003] IRLR 197

was a decision of the Employment Appeal Tribunal concerning an apprentice who was dismissed in connection with a downturn in orders. He had been employed under a modern apprenticeship pact. The pact was a standard form agreement entered into by the apprentice, the employer and a local training and enterprise council, under which the employer undertook to train the apprentice under the supervision of the training and enterprise council. Under clause 2.2 of the pact the apprentice agreed to be an employee of the employer and to comply with the employer’s terms and conditions of employment for the duration of the training plan. Under clause 3.2 of the pact the employer agreed to employ the apprentice for the duration of the training plan. Clause 4.5 of the pact provided that if the employer was unable to complete the apprenticeship, then the training and enterprise council was to assist in finding the apprentice the opportunity to complete the apprenticeship elsewhere. On appeal it was held that the pact was not an ordinary contract of employment but was intended to provide the apprentice with training for the duration of his training plan. The apprenticeship was capable of being objectively determined on the happening of a specified event, namely the satisfactory completion of the apprentice’s training and that the provisions of the pact would prevail in the event of any inconsistency with the employer’s terms and conditions as it would defeat the principal purpose of the pact if the employer could terminate the contract in the same way as for an ordinary employee. It was noted that the fact that clause 4.5 provided for what would happen on a breach of contract, did not mean that it was any the less a breach.

[38]In Revenue and Customs v Jones and others

[2014] UKEAT 0458/13

, a case concerning entitlement to the National Minimum wage, the position in relation to dismissal of apprentices was summarised and was stated as follows: “The ordinary law as to dismissal does not apply to contracts of apprenticeship. It can be brought to an end by some fundamental frustrating event or repudiatory act but not by conduct that would ordinarily justify dismissal. It would appear that the frustrating event or repudiatory act must have the effect of fundamentally undermining the ability to teach the apprentice.”

[39]In Beddoes v Woodward Electrical Limited

[2017] IRLR 435

an apprentice was employed in purported compliance with the provisions of the 2009 Act (as in force at the time). He was dismissed on the basis that he was not making adequate progress. It was held that the provisions of the 2009 Act had not been met on the basis that there was no approved apprenticeship standard. The arrangement fell to be determined as a common law contract of apprenticeship. Following the case law mentioned above, the judge found that there was no fundamental frustrating or repudiatory act which fundamentally undermined the ability to teach the apprentice.

[40]The courts have also considered the status of modern tripartite agreements in the context of apprenticeships. The case Flett v Matheson

[2006] IRLR 277

, CA, concerned an apprenticeship of 42 months. In Flett the Court of Appeal confirmed that a modern tripartite apprenticeship arrangement can constitute a common law contract of apprenticeship so long as it satisfies the traditional criteria relating to the duration of the agreement and the employer’s obligations under it. The fact that the training is provided by a third party and not by the employer is not crucial to the analysis of the employer’s obligations under the arrangements. In the circumstances, the arrangements were potentially consistent with a common law contract of apprenticeship and accordingly, it was not open to the employer to dismiss the employee on reasonable notice. In Flett Pill LJ also added at paragraph 29, “once a contract has been categorized as one of apprenticeship with a specific period of training contemplated, the right to dismiss on the ground of redundancy should not be readily implied”.

[41]The issue of how to assess damages in respect of breach of contract in respect of the disciplinary process, is dealt with in the case of Janciuk v Winerite [1997] WL. Janciuk sets out the appropriate approach to assessing damages for breach of contract arising from the contractual disciplinary procedure. Mr Justice Morison says “Where a contract of employment is terminable upon notice, the measure of damages to which the employee is entitled on summary dismissal is the amount which the employer would have been bound to pay had his contract been terminated lawfully, less any receipts by the employee during that period earned by way of mitigation of his loss. The employee is entitled to be put into the position he would have been in had the contract been performed. It is assumed for this purpose that the employer would have dismissed the employee by notice given at the very moment that the summary dismissal was effected. 2. When, for the purposes of calculating compensation, the Court considers what would have been the loss had the contract been performed, the Court assumes that the contract breaker would have performed the contract in a way most favourable to himself. This principle prevents the employee from recovering a windfall payment. If there were two lawful ways of performing the contract, the employee will be compensated on the basis that the employer will have chosen to perform the contract in the way which was least burdensome to him: Lavarack v Woods of Colchester

[1967] 1QB 278

[my emphasis]. Therefore, in a simple wrongful dismissal case, the Court does not ask what might have happened had the employer known that he had no right to determine the contract summarily, and then calculate compensation on a loss of a chance basis. The assumption is that the employer would have chosen to have terminated the contract lawfully at the very moment that he had brought [or sought to bring] the contract to an end unlawfully in breach of contract. 3. Some contracts of employment require the employer to follow a disciplinary procedure before notice of dismissal can be given. In other words, the disciplinary procedure acts as a brake on the giving of notice. In such a case the employer would be acting in breach of contract if he gave notice terminating the contract without first having followed the correct procedure. The measure of the loss for that breach is based upon an assessment of the time which, had the procedure been followed, the employee's employment would have continued. Again, that does not require an analysis of the chances that had the procedure been followed the employee might never have been dismissed. At this stage the Court is engaged on a process of quantifying damage suffered by a dismissed employee. The Court is concerned to know what would have happened, contractually, if instead of unlawfully dismissing the employee the employer had not broken the contract, bearing in mind the Lavarack v Woods principle. For this purpose the assumption that must be made is that the employer would have dismissed the employee at the first available moment open to him; namely after the procedure had been exhausted. The Court is not concerned to inquire whether the employee would have been dismissed had the contract been performed, but rather for how long would the employee have been employed before the employer was contractually entitled to give notice.”

[42]It is well established law that where there are damages for wrongful dismissal, the claimant is expected to take reasonable steps to limit the losses suffered as a consequence of the breach of contract. The burden of proving a failure to mitigate is on the respondent (Fyfe v Scientific Furnishing Ltd

[1989] IRLR 331

). It is therefore clear that the law does not create a general duty upon the employee to mitigate their losses. It is not enough for the respondent to show the claimant failed to take a step that was reasonable for them to take. They must show the claimant acted unreasonably.

[43]The duty arises only after dismissal, so a failure to take up an alternative job offer made before that date will not constitute a failure to mitigate. Submissions

[44]I heard oral submissions from both Ms Barry and Ms Sharma. In summary Ms Barry’s submissions amounted to the Respondent’s case being that it was accepted that there was no approved English apprenticeship agreement but that the agreement in place was a framework apprenticeship agreement.

[45]Ms Barry pointed principally to the principal statement documents as evidence that the arrangement was a framework agreement and that looking at all the documents together, it complied with the requirements of s32(2) of the Act. However, if the Tribunal was not with her on that point, then it was not an apprenticeship agreement but a contract of employment. She said that the Claimant’s failure to report this sickness and his absence on 7 July was an act so serious as to amount to misconduct, repudiatory act and the fundamental frustration of the contract. This was because the Claimant was working on a construction site where health and safety was a fundamental intrinsic aspect of working, and that the Claimant as a ground worker should understand that and if he didn’t, it would not be possible for the Claimant’s training to have continued as it would have meant that the Claimant was unteachable. Next, she addressed me on the issue of redundancy referring to the decision of Wallace v CA Roofing Services Ltd

[1996] IRLR 435

. Ms Barry asserted that there was a fundamental change in the Respondent’s enterprise when the Respondent closed down the aviation business unit. In these circumstances the Claimant could have been made redundant. Ms Barry submitted that the Claimant had not fulfilled his obligation to mitigate his loss and that the burden was upon the Claimant. The Claimant only applied for 39 jobs within a significant period of time and had the Claimant made targeted applications he would have been able to find alternative roles.

[46]The Claimant made a claim for pensions, but the Respondent noted that there were no pension deductions from the Claimant’s payslip and that the loss of qualification claim in the Claimant’s schedule of loss was erroneous.

[47]Ms Sharma’s submissions were brief and Ms Sharma predominantly relied on her written skeleton. In essence, Ms Sharma said that the contract was one of common law apprenticeship and was not a framework agreement as it did not comply with the requirements, that there was no redundancy as the employer was the Respondent company which Ms Graham confirmed still continued to trade, and there was in no way a fundamental change to the business. Ms Sharma sought to explain that the limited number of job applications provided by the Claimant in the bundle did not reflect the entirety of all the jobs that the Claimant had applied for. Ms Sharma explained that the Claimant had sent her a large amount of job applications which she thought was unnecessary to include in the bundle and that she relied upon the Department of Work and Pensions to prove that the Claimant was doing sufficient to mitigate his losses, which enabled him to claim universal credit. Ms Sharma explained that the Claimant thought that the apprenticeship role would lead to a civil engineering role, that he didn’t want to be a ground worker, that he wanted to train as a civil engineer, and he saw the apprenticeship as a means to achieve that. The reference to £9000 for loss of training was the amount referred to in the funding document on page 968. The Claimant now saw his future as seeking to do a foundation course in lettings and sales management with a view to working with his sister who is a surveyor. Ms Sharma explained that she didn’t accept the Respondent’s position that there were no other roles for him, and he would have been made redundant. She asserted that the purpose of the framework agreement was to enable the Claimant to get his qualification and that the Respondent could have offered him any work that would have supported the qualification so he might obtain the level II NVQ. Analysis and Conclusions

[48]It was implicit in the Respondent’s submissions that on the face of the principal statement, it was not compliant with the requirements of Section 32(1) of the ASCLA. Section 32(2) makes it clear that each of the conditions set out in section 32(2) must be satisfied for an agreement to amount to an “apprenticeship agreement” within the legislation. Having broken down all the requirements under their various subsections of Section 32(2), the agreement was not compliant with either (c) or (d). That is to say, the principal statement did not state that it was governed by the law of England and Wales and while I was told that was a minor omission, my powers are governed by the statute and the parties agreed that I did not have the power to amend the agreement to include a requirement it simply did not have. There were no facts upon which I could construe that the principal statement did state it was governed by the law of England and Wales. I was not presented with any evidence to support this; in fact, the only evidence present was provided by Ms Graham who had no experience of drafting apprenticeship agreements and had not even seen a fully compliant agreement at any time during her employment in the aviation sector of the Respondent. In the circumstances, I conclude that the Claimant’s contract could not be and was not a Section 32, framework apprenticeship agreement.

[49]I was referred to the Supreme Court decision Swainland Builders Ltd v Freehold Properties Ltd [2002] No. A3/2001/1419 in which the Supreme Court considered the equitable power of rectification. However, as my current powers derive from statute, I do not believe that I have this power of rectification and in the circumstances this authority does not assist me.

[50]All the authorities confirm that it is the character of the contract between the apprentice and the employer that determines whether the contract is a common law contract of apprenticeship if the principal purpose is the training of the apprentice, then that contract will be characterised as a common law contract of apprenticeship. It seemed to me clear and obvious that the entire purpose of the contract between the Respondent and the Claimant was for the purposes of training. In those circumstances the Claimant’s contract was a common law contract of apprenticeship.

[51]In the circumstances, I considered whether the Claimant’s conduct amounted to gross misconduct which could have resulted in the apprenticeship agreement being terminated. I took the view that whilst the Claimant’s conduct demonstrated the Claimant’s lack of motivation and drive it did not in my view amount to conduct that would result in the Claimant being regarded as unteachable. Accordingly, no disciplinary process applied could have resulted in the Claimant’s dismissal and the Claimant was therefore wrongfully dismissed. The fact that the principal statement and the working rules agreement referred to the various ways in which the apprenticeship could be terminated does not in my view mean that the apprenticeship could be lawfully terminated in accordance with those clauses. I am therefore persuaded by Mr Recorder Underhill QC as he was then, as stated at paragraph 11 of the EAT decision of M I Whitely v Marton Electrical Ltd (2002). “The agreement contemplates that the employer may not be able to complete the apprenticeship. That is no doubt so, but the fact that an agreement may provide for what shall happen in an eventuality which would be a breach of contract does not mean that it is any less a breach”.

[52]However, whilst I have concluded that there was a wrongful termination, I am convinced that that there was a real redundancy situation as contemplated in Wallace. Although there was no express contractual right of the Respondent to dismiss the Claimant by reason of redundancy, it is reasonable in these exceptional circumstances to imply one. The redundancy arose in in such exceptional circumstances as the Covid pandemic. This was not a case of the Respondent just losing orders, this was the wholesale closing of the aviation business, such that the nature of the Respondent’s business changed so fundamentally that the Claimant could no longer be taught the trade for which he was engaged. After 25 years the Respondent no longer operates in the sector. There were no longer any ground workers supplied by the Respondent and so the Claimant would not have been taught his trade by being redeployed to another part of the business.

[53]The Claimant was not able to contradict the Respondent’s evidence that there were no possible roles within the business that the Claimant could have undertaken as a ground worker. There were no ground worker roles within the Respondent’s business following the close of the aviation business. Again, Ms Graham’s evidence was not contested that the process for taking the Claimant through redundancy could have been tied up within 2 weeks from the first consultation meeting on 6 July. The Respondent had no more groundworkers after 31 July. It is therefore my judgment that the Claimant would have been dismissed by reason of redundancy by 31 July 2020.

[54]As the Claimant was paid up to 22 July 2020 the Claimant would have only been employed for another 10 days before being made redundant. The Claimant did not have the requisite period of service for a redundancy payment. The Claimant’s remedy is in damages for breach of contract following the wrongful dismissal. Contrary to Ms Barry’s submissions the law is clear, the burden is not upon the Claimant prove he has mitigated his losses. There is however an expectation that the Claimant take reasonable steps to mitigate his loss. However, I do not think that in the period of July 2020 that the Claimant would have been able to obtain work for this short period. In the circumstances I award the Claimant 10 days’ pay between 22 July and 31 July. On the basis of the Claimant’s weekly pay of £300.30.

[55]The Claimant is not awarded damages in respect of the cost of the training course for a ground worker as the Claimant would never have continued this course. Janciuk makes it clear that in the case of breach of contract where a disciplinary process is not followed the question to answer is for how long would the employee have been employed before the employer was contractually entitled to give notice. The Claimant would have been made redundant in the first instance, in the circumstances found, this entitled the Respondent to terminate the contract of apprenticeship lawfully having given reasonable notice of redundancy. Calculation of damages for breach of contract 56. 22.07.21- 31.07.21 =10 days

[57]Claimant’s 39 hours per week x £7.70 ph = (£300.3 x 52 weeks /365) x 10 days =£427.82. RECONSIDERATION

[1]The judgment was given orally at the hearing, with reasons, on 26 May 2023. Judgment was sent to the parties on 30 June 2023. Written reasons were requested by the Claimant on 1 July 2023. Written reasons were sent to the parties on 27 July 2023.

[2]The Claimant emailed the Employment Tribunal on 9 August 2023 applying for a reconsideration of the judgment. The grounds for reconsideration appear to be in summary a failure to make a finding as to the date that the Respondent’s aviation business closed or when the redundancy process ended and that the Claimant was not told why he was to be made redundant from 31 July 2020, there was no fair selection process, there was no finding of the nature of the core business of the Respondent, the companies house strategic document said that the company’s activity was made up of 49% construction and 51% revenue was not taken into consideration, there was no finding of what the Claimant’s role or trade was to be able to conclude that the Claimant’s role was specific to the aviation business, the Claimant’s arguments regarding redundancy were overlooked, the Claimant did not have notice of the Respondent’s mitigation argument or an opportunity to re examine the Claimant on the issue of mitigation.

[3]Rule 70 of the Employment Tribunal Rules of Procedure (“Rules”) provides a sole ground for reconsideration as, where it is necessary to do so in the interests of justice. The interests of justice does not mean that in every case where a party is unsuccessful, they are automatically 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 3313464/2020 entitled to reconsideration. Instead, a Tribunal dealing with the question of reconsideration must have regard to the overriding objective to deal with cases fairly and justly, and the Tribunal should be guided by the common law principles of natural justice and fairness.

[4]Tribunals have a broad discretion but that must be exercised judicially, which means not only taking into account the interests of the party seeking the reconsideration, but also the interests of the other party to the litigation and the public interest in the finality of litigation (Outasight VB Ltd v Brown 2015 ICR D11 EAT).

[5]Under rule 71 of the Rules, an application for reconsideration must be presented in writing and copied to all other parties within 14 days of the date upon which the written record of the decision which is the subject of the reconsideration application was sent to the parties, or if a request for written reasons was made, within 14 days of the date the written reasons were sent out, if later.

[6]There is no reasonable prospect of the original decision being varied or revoked, because the Claimant’s application for a reconsideration dated 9 August 2023 does not present evidence or matters that have not already been considered at the hearing. The written reasons contains all the findings that were necessary to come to the judgment made. I have had regard to the overriding objective, to consider the case fairly and justly and I have done so in respect of the Claimant’s application. In so far as the Claimant complains that there was no opportunity to reexamine the Claimant regarding mitigation, Ms Sharma was given an opportunity to re examine the Claimant & herself on day 2 (25.05.23) of the hearing. Furthermore, the issue of mitigation was agreed as an issue at the start of the hearing. Notwithstanding, I made a finding wholly in the Claimant’s favour regarding mitigation. I must also have regard to the public interest requirement so far as is possible there be finality of litigation. In the circumstances, the Claimant’s application for reconsideration of the award £427.82 in the judgment sent to the parties 30 June 2023 is refused.

[2]The Claimant’s claim for wrongful dismissal was successful. The Claimant was found to be a common law apprentice and was dismissed in breach of contract, but the Claimant would have been made redundant lawfully.

[3]The Claimant emailed the Employment Tribunal on 9 August 2023 applying for a reconsideration of the judgment. That reconsideration application failed and, the reconsideration judgment dated 16 August 2023 with reasons was sent to the parties on 31 August 2023.

[4]References in square brackets are references to paragraph numbers from the Respondent’s reconsideration bundle. References to the original trial bundle are contained in round brackets in bold.

[5]I undertook preliminary consideration of the Claimant's application for reconsideration of the judgment of his claim. That application is contained [241- 243] in a 27 page document attached to an email dated 2 December 2023 [216]. I have also considered comments from the Respondent dated 21 December 2023 [244-245]. Having considered the application and the comments, the Tribunal considered that the application should not be refused at that stage without a hearing. Notice of a reconsideration hearing was sent to the parties on 6 February 2024 [246-247] and the parties were asked if a hearing was necessary. Whilst the Claimant considered that a hearing was not necessary [256], the Respondent considered that a hearing was necessary [257]. The Tribunal relisted the reconsideration hearing for 3 hours on 22 March 2024. Hearing

[6]The hearing was conducted by CVP with the Claimant’s mother and representative Ms Sharma in attendance and Ms Barry of counsel attended on behalf of the Respondent. Both representatives were the same representatives before me at the trial hearing. Initially the Claimant attended. Ms Sharma asked the Tribunal if the Claimant’s attendance was required. The Tribunal informed Ms Sharma that it was a matter for her, but she may require instructions from the Claimant on matters. Ms Sharma decided that the Claimant did not need to attend, and he left the room.

[7]The Claimant complained that the Respondent provided their skeleton argument 2 days late. However, the Claimant’s representative was not able to explain the prejudice to the Claimant. Ms Sharma said that she would have liked to have fine-tuned her submissions but was not able to explain why she could not do that in her oral submissions to the Tribunal. The Tribunal ruled that there was no prejudice to the Claimant in respect of the lateness of the skeleton argument. Ms Barry explained that she sent the skeleton argument to the Respondent’s solicitor on the Friday when it was due. The Respondent’s solicitor was not able to review it on the Friday and so needed the weekend to review it. The Respondent’s skeleton argument was then exchanged with the Claimant on the Monday.

[8]I had before me the Respondent’s reconsideration bundle of 273 pages and the trial bundle of 1081. In addition, I also had the Claimant’s written submissions and the accompanying attachments of the Respondent’s EAT submissions dated 15/12/23 in response to the Claimant’s amended grounds of appeal, Respondent’s solicitor’s email dated 29/02/24, emails dated 03/05/23 & 04/05/23 regarding without prejudice offers with offer amounts redacted between the parties’ representatives, an email from the Claimant’s representative dated 01/05/23. The Respondent also provided written submissions in respect of the Claimant’s application. The Law Reconsideration

[9]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70 of the 2013 Rules of Tribunal Procedure).

[10]Rule 72(1) of the 2013 Rules of Tribunal Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.

[11]Rule 71 of the 2013 Rules of Tribunal Procedure says “Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent (if later) and shall set out why reconsideration of the original decision is necessary.”

[12]In Outasight VB Ltd v Brown [2015] ICR D11, EAT, the EAT confirmed that the law regarding the reconsideration of a judgment in light of new evidence did not change with the introduction of the 2013 Tribunal Rules. The interests of justice test includes the conditions set out in Ladd v Marshall

[1954] 3 ALL ER 745

. in summary: 1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, 2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, 3) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

[13]The EAT’s decision in Wileman v Minilec Engineering Ltd

[1988] IRLR 144

expands on the application of the Ladd v Marshall conditions. In Wileman, the EAT said that the evidence must not only be relevant, but it must be probable that it would have had an important influence on the case as Tribunal hearings are designed to be speedy, informal, and decisive. It is not necessary that the new evidence be shown to be likely to be decisive. The question for the tribunal on reconsideration is “in the light of what we know about this case, has it been shown to us that the evidence is relevant and probative, and likely to have an important influence on the result of the case?” (paragraph 15 of Wileman v Minilec)

[14]The approach to be taken to applications for reconsideration was considered in the case of Liddington v 2Gether NHS Foundation Trust

UKEAT/0002/16/DA

. In paragraph 34 of that decision, Simler P stated that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”

[15]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor

[2016] EWCA Civ 714

where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials

[1994] ICR 384

Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”

[16]As is the case with all powers under the 2013 Tribunal Rules of Procedure, any preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely, to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. Preparation Time Orders & Wasted Costs

[17]Rule 76 of the 2013 Tribunal Rules of Procedure states: “When a cost order or a preparation time order may or shall be made.(1) a Tribunal may make a cost order or a time preparation order, and shall consider whether to do so, where it considers that (a) a party (all that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted…

(2) A Tribunal may also make such an order where a party has been in breach of any order or practise direction or where a hearing has been postponed or adjourned on the application of a party.”

[18]Rule 80 of the 2013 Tribunal Rules of Procedure states: “When a wasted costs order may be made(1) a Tribunal may make a wasted costs order against a representative in favour of any party (‘the receiving party”) where that party has incurred costs (a) as a result of any improper unreasonable or negligent act or omission on the part of the representative or (b) which, in light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. Costs so incurred are described as “wasted costs”.

(2) “Representative” means a parties legal or other representative or any employee of such representative, but it does not include a representative who is not acting in pursuit of profit with regard to the proceedings. The person acting on a contingency or conditional fee arrangement is considered to be acting in pursuit of profit.

(3) a wasted costs order may be made in favour of a party whether or not that party is legally represented and may also be made in favour of a representative's own client. A wasted costs order may not be made against a representative where that representative is representing a party in his or her capacity as an employee of that party.” The Application

[19]The grounds for the Claimant’s second reconsideration application which was before me was that on 30 November 2023, the Claimant’s mother viewed the Respondent’s website and came upon a webpage that stated that “in 2019 the Q6 framework agreement was extended for a further 2 years, Q6 +1, ending in December 2021.” At the top of the page, it states “customer: Heathrow Airport Ltd Location: London Completion: 2021” [222]. The Claimant’s primary oral submission was that this was new evidence because when the Claimant’s representative Ms Sharma looked at the Respondent’s website in December 2023 because her 2 EAT appeals on 27 November 2023 had failed it said something different to what it said when she viewed the same webpage on page 222 in 2020. Ms Sharma said at the top of the page in 2020 where it now states “completion: 2021”, it said ‘expected to be completed’. The Claimant says that this is fresh evidence and calls into question the date that the Claimant could have been made redundant.

[20]The Claimant argued that the conditions set out in Ladd v Marshall in deciding whether or not to allow this reconsideration because of new evidence were fulfilled. However, the Respondent pointed out that in the Claimant’s first reconsideration application the Claimant referred to “the Respondent’s grounds of resistance dated 1st March 2023 stated that the redundancy process was still ongoing in early 2022”. That the Employment Judge Young found that the application did not present any new evidence or matters that had not been considered at the hearing [214-215].

[21]The Claimant relied upon the case of SQR Security Solutions Ltd v Badu

UKEAT/0329/15/DA

to support the Claimant’s assertion that the Respondent’s credibility was called into question regarding when the Respondent’s aviation business was closed. The Claimant said that the Respondent misled the Tribunal because their grounds of resistance dated 30 December 2020 stated that there would be no employees left on the Heathrow site by March 2021. But in their 29/02/24 email the Respondent admitted that the aviation site was operational until December 2021. In SQR Security Solutions Ltd v Badu the EAT found that the Employment Judge failed to have regard to the wider impact of the fresh evidence on the Claimant’s credibility. The Claimant said that the Respondent confirmed in their email of 29/02/24 to the EAT that the fresh evidence had been available at the time of the hearing in May 2023. The Claimant argued that the Respondent had a legal obligation to disclose documents whether they adversely affect or support their case that meant there was a failure to disclose which also applied to the Respondent’s duty to the ET under rule 2 to assist the ET to ensure that the case is dealt with fairly and justly. The Respondent said that they did not mislead the Employment Tribunal and their pleaded case and their evidence of Ms Graham is consistent with the position that there were ongoing redundancies throughout 2020 to 2021 until beginning of 2022.

[22]The Claimant also argued that the Respondent’s email of 29/02/24 also confirms that the BA Premia aviation project did continue throughout Covid, ‘as it was classed as essential infrastructure by the government,’ their email also confirms that this aviation project did run to December 2021, and that contrary to the Respondent’s statement, the Claimant was part of the BA Premia project. The Respondent argued that this was not new information, the Respondent had referred to this in their grounds of resistance and Ms Graham’s evidence. There was a reference in Ms Graham’s evidence at paragraph 61 to the essential security nature of repairs to a fence [176] regarding the BA Premia project and that the Claimant was not part of the BA premia project but worked for Heathrow Airport Ltd. The Respondent was upfront.

[23]The Claimant said that the new information was relevant and would change the Tribunal’s decision because it meant that the Claimant could still be taught a trade. The Claimant would not have been dismissed because the aviation site where he worked did not close prior to the term of his contract. The Claimant could still attend college. The Claimant said that the 29/02/24 confirmed that that demobilization continued until December 2021, but the apprentices were brought back from furlough to demobilize the site. The Respondent’s position was this information was contained within Ms Graham’s evidence.

[24]Ms Sharma stated in her written submissions that the application for reconsideration was casually linked to the Claimant’s application for preparation time order and wasted costs and so I also considered the Claimant’s application for a preparation time order and wasted costs order with the reconsideration application.

[25]Ms Barry pointed out in her oral submissions on behalf of the Respondent that the application was 4 ½ months out of time and that there was prejudice to the Respondent as there must be finality of proceedings. Analysis and Conclusions

[26]The Claimant’s reconsideration application dated 2 December 2023 was made approximately 16 weeks out of time as written reasons were sent to the parties 27 July 2023.

[27]Although the Claimant’s reconsideration application was out of time, the Tribunal considered the issue of time with the issue of whether the Claimant obtained the ‘new evidence’ with reasonable diligence, under Ladd v Marshall.

[28]Whilst the Claimant referred to Ladd v Marshall, the Claimant’s arguments did not meet the conditions required by Ladd v Marshall that would allow an Employment Tribunal to reconsider a decision in light of new evidence. Firstly, the Claimant did not explain why it was not possible for the Claimant to have obtained the new evidence the Claimant now relies upon with reasonable diligence. The Claimant said that the information on the website in July 2020 said that the project was to be completed. There was nothing to stop Ms Sharma checking the website in May 2023 for trial to see if the project had been completed or not. In any event Ms Sharma had the information she needed when she checked the website in July 2020 when the ET1 was presented at stated that the project would be finished in December 2021. The Claimant did not present this evidence at trial and there are no mitigating factors as to why not. Ms Sharma explained in her oral submissions that she was prompted to look at the Respondent’s website again in November 2023 when her appeals had failed and the Tribunal’s reconsideration judgment in July 2023 had referred to new evidence. However, the Claimant received the Tribunal’s refusal of the Claimant’s first reconsideration application which indicated that there was no new evidence months prior to November 2023. In my judgment there is no good reason for the delay and a delay of 3 ½ months is not insubstantial. There is no prejudice to the Claimant, the Claimant was successful in his claim notwithstanding the Claimant did not obtain as much compensation as he would have liked. In those circumstances, the Tribunal does not exercise discretion to extend time.

[29]Notwithstanding the application is out of time, I address the Claimant’s other arguments in Ms Sharma’s submissions. Ms Sharma simply did not make the argument at the May 2023 hearing that the Claimant worked on the BA premia contract and that continued and there was work that he could have done. By Ms Sharma’s own admission, she knew and therefore the Claimant knew what the Respondent’s website said in July 2020 about where they were regarding their outstanding projects. Secondly the Claimant did argue at trial that the Claimant could continue his apprenticeship and that the Claimant could do any work in order to achieve this. The Tribunal simply did not accept the Claimant’s argument as there was no evidence to support the argument. The Claimant did not explain what it was he could do. The role of groundworker was specific to the Respondent’s aviation business and there were no groundworker apprenticeships in the rest of the Respondent’s business. The Claimant is seeking to argue something that was open for the Claimant to argue at the trial. The Claimant simply didn’t argue it and it is not now open to the Claimant to argue it now.

[30]I put to the Claimant’s representative multiple times, that she had argued before the ET at the hearing on 24- 26 May 2023 that the site closed not that the business changed its nature and that she repeated this point at hearing on 22 March 2024. The Claimant argued at the hearing in May 2023 that the business of the Respondent Morgan Sindall continued to trade and so that meant that there could not be a redundancy situation and there was no fundamental change. [119] The Claimant did not argue that the Claimant could continue to train as an apprentice because of a particular contract. The Claimant’s argument specifically was that the Claimant could continue to train as he could do any work. It was not argued by the Claimant at trial that demobilisation was training for the apprentices or the Claimant in particular. At the trial the Claimant did not address the fundamental issue that Covid had made the aviation business untenable for the Respondent and that the Claimant’s apprenticeship was in the aviation business. The finding made in paragraph 20 of the judgment remains unchallenged by the ‘new evidence’ the Claimant seeks to present. It was not argued that the winding down of the aviation business included the Claimant’s groundworker apprenticeship. It is worth noting that the Claimant gave evidence that he did not want to do a groundworker apprenticeship and Ms Sharma argued that the groundworker apprenticeship was not what she wanted her son to do and what he signed up for. Ms Sharma argued that the Claimant should be doing civil engineering apprenticeship and training commensurate with that.

[31]The majority of the points raised by the Claimant are attempts to re-open issues of fact on which the Tribunal heard evidence from both sides and made a determination. In essence, Ms Sharma was seeking a “second bite at the cherry” for the Claimant which undermines the principle of finality. Such attempts have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing. A Tribunal will not reconsider a finding of fact just because the Claimant wishes he had obtained more compensation than he was awarded.

[32]I considered whether SQR Security Solutions Ltd v Badu was applicable and considered that it was not. The duty to disclose relevant information did not mean that the Respondent had to disclose every single piece of evidence that might demonstrate a particular argument in the Claimant’s favour. Ms Graham’s witness statement states at paragraph 61 that “Heathrow Airport was immediately impacted (both operationally and financially) and they had to cut costs quickly. HAL reviewed all of their capital works and frameworks and urgently stopped all but essential projects. For example, a project involving repairing the secure perimeter fence had to continue due to security risk however others such as car park repair were stopped immediately.” [176] The Respondent stated in their pleadings that the redundancy process was ongoing throughout 2021 [89]. There was no breach of the Employment Tribunal’s order for disclosure by the Respondent (72). Furthermore, the evidence that the Claimant presented was not new evidence at all and would not be decisive in influencing the result of the case. The Claimant did not make a distinction between the closing of the site which was not a finding of the Tribunal and the closing of the business. However, the Tribunal’s finding was in relation to the closing of the aviation business. The Claimant worked from the Heathrow site, and whilst Heathrow closed during the pandemic, it did not close indefinitely. All the information about demobilisation and the winding down of the aviation business which resulted in BA Premia contract not tailing off until 2021 and the last redundancies not taking place until 2022 was information before the Tribunal at trial. The information was considered and there was no misleading by the Respondent. The Tribunal found that demobilisation activity with the run off of an existing contract contributed to the fundamental change of the Respondent’s aviation business. In coming to my determination, I have had regard to the overriding objective, to consider the case fairly and justly and I have done so in respect of the Claimant’s application.

[33]Having considered all the points made by the Claimant I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The points of significance were considered and addressed at the hearing. The application for reconsideration is refused. As the application for reconsideration is refused, and the Claimant put forward the preparation time order and wasted costs order as causally linked to the Claimant’s reconsideration application, there are no grounds for granting the Claimant’s preparation time order and wasted costs application on the basis put forward by the Claimant. The Claimant’s application for preparation time order and wasted costs fails.

[34]I must also have regard to the public interest requirement so far as is possible there be finality of litigation. In the circumstances, the Claimant’s application for reconsideration is refused.