Mr G Ferguson-Haizel v Tesco Stores Ltd: 3313501/2020

EMPLOYMENT TRIBUNALS

Case No 3313501/2020

Between

Mr G Ferguson-HaizelClaimant

Tesco Stores LtdRespondent

Before

Employment Judge A Frazer

In person for claimant

Ms C Goodman for respondent

Date 15 March 2023

JUDGMENT

[1]The Claimant’s claims for whistleblowing (detriment), victimisation (detriment), unpaid wages and holiday pay cannot proceed because of the operation of rule 52 and res judicata.

[2]The Claimant’s claims in respect of his dismissal shall proceed. These are his direct race discrimination claim under paragraph 23 of his grounds of complaint; his claim for whistleblowing unfair dismissal (s.103A ERA 1996) and any claim for victimisation (dismissal) under s.27 Equality Act 2010.

REASONS

[1]This case was listed for a preliminary hearing via CVP to determine whether, upon the Respondent’s application, the claim should be struck out or a deposit ordered on the basis that it either had no or little reasonable prospect of success. The application was presented on the basis that the Claimant’s claim was subject to the doctrine of res judicata or was otherwise an abuse of process further to the principle as set out in Henderson v Henderson

(1843) All ER 378

[2]While I was requested by counsel to consider the application to strike out on the merits, owing to the time constraints and the fact that the focus of the application had been on the issue of res judicata/abuse of process I confined my decision to this issue. I indicated to both parties however that once there had been a decision as to what claim(s) were going forward it would be clear whether whatever was left ought properly be subject to an application to strike out/deposit on the prospects of success.

[3]I received a hearing bundle running to 429 pages from Mr Ferguson-Haizel and a hearing bundle running to 89 pages from the Respondent. I was provided with a skeleton argument from Mr Ferguson-Haizel and one from Ms Goodman. The case was listed for three hours on CVP but unfortunately there were technical difficulties for the first hour which meant that the hearing could only take place over two hours. I was still able to hear full submissions. I then reserved my decision.

[4]The claim for ordinary unfair dismissal was not subject to the res judicata argument advanced by the Respondent.

Background

[5]The Claimant was employed as a Customer Assistant working four hours a week at the Respondent’s Colney Express Store between 28th November 2010 and 17th August 2020. He was dismissed summarily on 17th August 2020.

[6]There are two claims which have been the subject of the parties’ submissions in this application. ‘Claim One’ has claim number 3307908/2020 and ‘Claim Two’ is number 3313501/2020.

[7]The history and details of ‘Claim One’ are as follows. The Claimant put in an early conciliation notification on 5th June 2020 and the EC certificate was issued by ACAS on 5th July 2020. The claim form was presented on 13th August 2020.

[8]The Claimant declared that his employment was continuing. Under Box 8 he claimed age, race and sex discrimination and holiday pay and arrears of pay. The particulars of his claim were as follows: ‘Race discrimination It is illegal to discriminate against a person because of a protected characteristic. On 18/05/2020 I was suspended from work for failing to proceed with investigatory without a Usdaw union representation. ?Concerns are very high among BAME staffs and we should not be surprised given the awful situation happened on 18/05/2020 to a member of staff from a BAME background. People with protected characteristic can often experience discrimination based on their identity, such as their age or gender. This may have a negative impact on health and wellbeing. This can result in poorer health outcomes and further health inequalities. Employees from all age groups are entitled to union representation when affected with any problems at work. Their support for a union representation has been unsatisfactory. At the time they should have, I was badly affected by their conduct. There were fears that I wanted to run away. It was clear that they did not show any sign of back up for my claim for a union representation.’

[9]Under Box 9.2 the Claimant sought ‘mandatory compensation, returned back to my regular place of work and to receive the right minimum wage and holiday entitlements’. Under Box 15 (‘Additional Information’) he wrote: ‘I am shocked that the investigation into my grievance was flipped and I then became the subject of an investigation, rather than the people being complained about. Tesco has responsibility to ensure its obligation under the Equality Act 2010 in ensuring that people with a protected characteristic do not experience disadvantage at workplace. All managers have a responsibility for ensuring the safety and wellbeing of those they are managing. The role of an investigator is about someone who actually it is to a person from a BAME background and who knows what it entails in the day to day life and working life within Tesco. This role needs a leader, clear direction, desire to be part of changes around inequalities and having someone who truly believes in what they say and can push forward as a collective with the rest of the BAME network. There?s clear evidence of inequality, prejudice and lack of diversity with regards to employment within Tesco – Negative views around equality and diversity. Given the above I believe I?ve been subject to discrimination. I am not afraid to speak out on issues. This is clearly evident in the case of Chontay Marie Nathan, former Tesco employee who worked in the Gallions Reach branch in Beckton after reporting incidents of racial abuse of black colleagues is set to take legal action against the company. However, I will choose in this instance, I truly believe that this role is not about who can write the best or who can say what is expected but may not necessarily mean. The current Black Lives Matter movement and concerns flagged around employment vulnerability associated with BAME has magnified more than ever the need for change across all employment sector. I believe we have once in lifetime opportunity to move the debate we have had for decades to challenge and dismantle the existing status quo. This role also required a certain level of lived experience, resilience and ultimately thick skin and an ability to take a position some negative scenarios faced by people of colour both within our day to day lives and within Tesco and this I believe gives me a better understanding of the challenges ahead. I have always known I was different whether by virtue of my colour, gender or ethnic background highlighted by someone or some behaviour towards me.’

[10]While the Claimant did not expressly claim whistleblowing detriment the claim appeared to be within his contemplation when he referred to his ‘grievance being flipped’. Essentially he was complaining that he had disclosed bullying by colleagues to the Respondent’s protectorline and that after he had complained he became the subject of an investigation himself instead. To this broad extent – and only for the purposes of this application - I shall read into this complaint a claim for whistleblowing detriment under s.47B ERA 1996 and victimisation detriment under s.27 Equality Act 2010. I have some doubts that those claims were sufficiently clear as pleaded but they may have been expanded upon a direction for the provision of further information had Claim One proceeded to a hearing.

[11]On 7th September 2020 the claim was served by the Tribunal staff on the Respondent. By email of the same date the Claimant wrote to the Tribunal discontinuing his claim and confirming that he had served the email on the parties. On 21st September 2020 the Respondent wrote to the Tribunal. It stated that while it had received the Notice of Claim and was required to serve a response by 5th October, it had also received the Claimant’s notice of discontinuance dated 7th September. The Respondent requested a rule 52 judgment be entered and that the Tribunal write to the parties to confirm that no Response would be required to be entered in the circumstances. In any event and not having heard from the Tribunal/ the rule 52 judgment not having been entered, the Respondent did in fact enter a response on 4th October 2020 in order to protect its position.

[12]In its Response the Respondent stated that on 10th August 2019 four colleagues of the Claimant had made a complaint against him, alleging that he had made disrespectful and derogatory comments and had displayed disrespectful behaviour towards them, in particular regarding their nationalities and immigration status. The Response went on to say that the Claimant had been invited to four separate investigation meetings but they had not gone ahead owing to disruption by him. He was then invited to a meeting in May 2020 and on that occasion he did not attend. The Respondent therefore suspended him and invited him to a disciplinary hearing. The Respondent suspended him from work on 18th May for refusing to attend an investigation meeting, not informing the Respondent that he needed assistance arranging a trade union representative and unreasonable behaviour. On 20th May the Claimant raised a protector line complaint and complained that he had been subject to victimisation and discrimination by colleagues. The Claimant was then invited to a meeting on 6th July to discuss his complaint and the complaints made by the colleagues. There were then further investigation meetings. It was stated that the Respondent decided to refer the matter to a disciplinary hearing on 17th August at which the Claimant was dismissed summarily for gross misconduct. It was stated that the appeal was raised on 28th August 2020 and that the Respondent was in the process of carrying out the dismissal appeal process and the Claimant’s grievance. The Respondent denied the Claimant’s claims in their entirety and defended its position as to the dismissal insofar as it was alleged to be discriminatory.

[13]On 19th October 2020 EJ Lewis dismissed the claim upon withdrawal under Rule 52. The judgment was sent to the parties on 8th November 2020.

[14]On 21st November 2020 the Claimant wrote to the Tribunal requesting reconsideration of that judgment. He said that he had withdrawn his claim upon advice from his union representative but now believed that he had been negligently advised.

[15]On 31st December 2020 the Tribunal wrote to the parties stating that EJ Lewis had refused the reconsideration application: there was no prospect of the original decision being varied as the Claimant could not change a written withdrawal.

[16]I now come to the facts surrounding ‘Claim No.2’ which is case number 3313501/2020. There was an early conciliation notification submitted on 10th September 2020 and the EC certificate was issued on 10th October 2020. The claim form was received by the Tribunal on 13th November 2020. In this claim form the Claimant stated that his dates of employment were from 28th November 2010 to 17th August 2020. At Box 8 he claimed unfair dismissal, race discrimination, holiday pay and arrears of pay. He provided a separate sheet entitled ‘basis of claim’. The particulars of unfair dismissal appeared to be claims for both ordinary unfair dismissal (s.98 ERA 1996) and automatically unfair dismissal (s.103A ERA 1996).

[17]The essence of the race discrimination complaint was that the Claimant had been discriminated for complaining about the bullying that he had been subjected to. He stated that the complaints about him were made up by the colleagues. At paragraph 22 the Claimant complained that his complaint to Protectorline had not been resolved and that this was race discrimination. At paragraph 23 he stated: ‘It is submitted that Tesco’s decision to summarily dismiss me based on uncorroborated (the allegations are from the same source) allegations of friends from the same ethnic background, and without considering alternative sanctions was due to my race. It is submitted that a person of White or Asian background would have received a better treatment from Tesco management and a different sanction other than summary dismissal would have been considered. This is based on the fact that the allegations are uncorroborated, investigations flawed and took approximately one year and there are other sanctions that could have been considered by Tesco management to mitigate the foregoing issues.’

[18]In respect of his pay claim at paragraph 24 the Claimant said, ‘since joining Tesco on 28th November 2010 there have been problems with my pay. I have evidence to support the fact that I have not been paid properly and that the problem continued throughout my employment.’

[19]The claim was served on 3rd December 2020. The Response was entered on 21st December 2020. The Respondent also made an application for striking out of the Claimant’s claims. It was stated: ‘It is the Respondent’s position that the Claimant is barred from pursuing claims for race discrimination (save insofar as the dismissal itself is now relied on as an act of discrimination), holiday pay and arrears of pay under the Second Claim and these parts of the Second Claim should be struck out. The claim for unfair dismissal may proceed and does not form part of the Respondent’s application.’

The Law

[20]Rule 52 of the Employment Tribunal’s Rules of Procedure states as follows: ‘Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless –(a) the claimant has expressed at the time of withdrawal a wish to reserve the right to bring a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or

(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.’

[21]The rule in Henderson v Henderson provides that ‘the Court requires the parties to that litigation to bring forward the whole of their case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter that might have been brought forward as part of the subject in contest but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case.’

[22]In Virgin Airways Ltd v Zodiac Seats UK Ltd

[2013] UKSC 46

at paragraph 17 Sumption LJ described the term ‘res judicata’ as a ‘portmanteau term which is used to describe a number of different legal principles with different juridical origins’. He stated that once a cause of action had been held to exist or not to exist, that outcome may not be challenged in subsequent proceedings (cause of action estoppel).

[23]In Johnson v Gore Wood and Co (a firm)

[2001] 1 All ER 481

the House of Lords found that a subsequent action does not automatically amount to an abuse of process where an issue could have been raised before but was not. Instead the court should make a broad, merits based judgment that takes into account all of the facts of the case and focuses on whether, in all of the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it an issue that could have been raised before. Submissions

[24]On behalf of the Respondent Ms Goodman submitted that the Claimant’s claims for race discrimination, holiday pay and arrears of pay were subject to cause of action estoppel as they were the same or substantially the same as those brought in the first claim. He did not in effect protect his position by indicating to the Tribunal, when he withdrew his claim, that he wished to litigate the issues which he now pursues in his second claim. His claims for whistleblowing and victimisation, to the extent that they are pleaded, are estopped in accordance with rule 52 as they are substantially the same as those brought in the first claim. Ms Goodman stated that even the race discrimination claim brought on the basis of the dismissal was an abuse of process. The Claimant had had an opportunity to present this claim by form or amendment prior to the dismissal judgment having been entered on 8th November. The Claimant was to have put forward the whole of his case and did not. She submitted that the Respondent had been unjustly harassed as it had had to instruct lawyers to defend the second claim and it had the right to expect some finality in the litigation.

[25]On his own behalf Mr Ferguson-Haizel submitted that the appeal process ended on 12th October 2020, which post-dated his application for withdrawal. He had only withdrawn his claim based on negligent advice. He said that he submitted the first claim because he had been suspended because he had requested the assistance of a union representative. The first and second claims had different bases of claim. The whistleblowing claim was of significance as it had a public interest implications since all of the staff in the shop were affected by people who were related working on the same shift. The application to strike out for an abuse of process was an extension of the Respondent’s harassment of him. The Tribunal should have regard to the merits of the claim.

[26]I queried the holiday pay and unpaid wages claims with Mr Ferguson-Haizel as there were no particulars. He said that throughout his employment the hourly rate was wrong. He said that he complained but that nothing was done. I asked him what the difference was between the first and second complaint and he said that the second claim was different because at that time he was not employed. He said that his claim for holiday pay was on the basis that he had not been allocated the correct holiday entitlement. He had only been given 4 days and ought to have been given 9.

Findings

[27]At the time that he withdrew his claim on 9th September 2020 Mr FergusonHaizel did not express a wish to reserve his right to bring a further claim pursuant to rule 52(a). I find that the claims for holiday pay and unpaid wages were substantially the same complaints as were raised in the second claim as they dealt with a general complaint of not having been paid the right wages or given the right holiday entitlement over the course of his employment. It makes no difference whether those claims are brought while he is in or out of employment. Those claims cannot continue under the principle of cause of action estoppel. They have already been dismissed under Rule 52.

[28]The Claimant had not expressly complained of whistleblowing detriment or victimisation pursuant to s.27 Equality Act 2010. However, his complaint in Claim One was that he had become the subject of an investigation and this complaint could be construed as a whistleblowing or victimisation detriment claim. These claims cannot proceed under the principle of cause of action estoppel.

[29]To the extent that he is bringing any detriment claim on the basis of action taken towards him short of dismissal and while still in employment I find that this would be substantially the same complaint as his detriment claims in ‘Claim One’. He is therefore estopped from bringing any such complaint. He presented his claim form on 13th August 2020 which was shortly before his summary dismissal. It would have been open to him to bring any claim for action short of dismissal at that juncture.

[30]However the Claim Two complaints are broadly concerned with dismissal and in my finding the complaint at paragraph 23 is a different complaint to the detriment claim that he made in Claim One. It appears to be a direct discrimination complaint about the choice of sanction applied by the Respondent in respect of his conduct. In Claim One the Claimant had complained that he wanted the suspension to be lifted so that he could return to work: that was the remedy he sought. In Claim two he was complaining that he was dismissed when the Respondent would have applied a lesser sanction to a white comparator. That was a different complaint.

[31]In Abernethy v Mott, Hay and Anderson

[1974] ICR 323

Cairns LJ said: ‘a reason for the dismissal of an employee is a set of facts known to the employer it may be beliefs held by him, which cause him to dismiss the employee’. Considerations going to the reason for dismissal are not the same as those going to the decision to suspend or to the choice to investigate. They may end up being the same on a finding of fact but the question calls for different considerations such as why the Respondent chose dismissal and not some lesser sanction.

[32]I do not consider that the Claimant would be misusing the process of the court in bringing any complaint concerning his dismissal, nor would it be contrary to the requirement for him to reserve his right under rule 52(a). It is a different complaint. I find that paragraph 23 of Claim Two shall proceed as a direct race discrimination complaint concerning his dismissal.

[33]I also take into account that Mr Ferguson-Haizel applied for a reconsideration promptly when he realised that he had withdrawn on negligent advice. I do not find that it would have been incumbent on him to express a wish to reserve his right to bring a dismissal claim when withdrawing as he was withdrawing in relation to his suspension and the decision to investigate. For him to have articulated his right to reserve in this way would mean he might be considering Claim Two as substantially the same complaint, which I find it is not. Claim Two is a complaint about the decision to dismiss.

[34]Accordingly I find that any complaint which relates to dismissal can go ahead. That includes the claim for direct race discrimination as per paragraph 23 of the Grounds of Complaint, s.103A ERA 1996 and s.27 insofar as it relates to dismissal. The Respondent has not argued that rule 52 should apply to the claim for ordinary unfair dismissal.

[35]The complaints of unpaid wages and holiday pay cannot proceed owing to the principle of res judicata and rule 52. These are substantially the same complaints as between Claims One and two. The Claimant ought to have expressed a wish to reserve his right in respect of those complaints at the time of lodging his notice of withdrawal and he did not.

[36]Further, any complaints relating to detriment (action short of dismissal) which appear in Claim Two would have been reasonably open to the Claimant to bring by way of Claim One when he presented his claim form on 13th August, just four days prior to his dismissal. They are therefore caught by the principle of cause of action estoppel.

Findings of fact

[37]There then followed a sequence of four further invitation letters, all in similar form to the first, but advising the claiming that Ms Thavarajah could decide how to proceed without hearing from him if he did not attend a meeting with her: 1. The letter of 29 October 2019. This letter was sent using the London Colney branch’s note paper as the claimant had told his store manager that he did not attend the October meeting as he did not think the letter related to him because it came from another branch. The claimant failed to attend the meeting scheduled for 04 November referred to in the letter. He made no contact with Ms Thavarajah. 2. The letter of 05 November 2019. This letter invited the claimant to a meeting on 25 November. Again, he failed to attend. Shorty prior to the meeting he told his manager that he would not attend because he did not know Ms Thavarajah. Unfortunately, that message did not get to her until after the meeting. The claimant also questioned why the meeting was not being held at the London Colney store. 3. The 29 November letter This letter invited the claimant to a meeting at London Colney on 09 December 2019. A shift leader at the London Colney store tried to hand to the claimant this letter but he refused to take it. We reject the claimant’s assertion that the note of the shift leader to this effect is a fabrication. Here, as elsewhere, his evidence was confused. He initially told us that he did take the letter and did not attend as the meeting was to be at St Albans. When it was pointed out that it was to be at London Colney, he said that this was wrong, and it was to be at St Albans. He could not explain why the letter referred to a meeting at London Colney, or how he knew of the venue. 4. In January 2020, a further letter was prepared and taken to London Colney by a manager from a neighbouring store. The claimant refused to take it or read it. The claimant said he would not do anything until the respondent admitted that it was at fault in sending the first invitation from the wrong address.

[38]We conclude that the claimant was aware the nature of the complaints against him and was doing all that he could to avoid any investigation into them.

[39]The claimant was absent on leave on many of the Mondays in January and February 2020 when he would otherwise have worked. On 4 May, Vicki Young, a People Partner, spoke to the claimant at London Colney and urged him to meet with Ms Thavarajah. Ms Young told him that if he would not participate in the investigation he might be suspended. He accused the respondent of being racist and of bullying him. He said that he refused to attend any investigatory meeting.

[40]This is an appropriate point to note that in various documents and before us, the claimant has alleged that the respondent does not allow people of colour to progress in the organisation. Save that he says that he himself was rejected when he applied for an apprenticeship, he gave no details of the respondent’s conduct on which he relied to support this proposition. We note that two of the senior managers who gave evidence before us (Ms Thavarajah and Ms Alexander) were themselves women of colour.

[41]A further invitation letter was then sent on 12 May 2020 for a meeting with Ms Thavarajah at London Colney on 18 May. Like the first letter, it asked the claimant to contact Ms Thavarajah “upon receipt of this letter to confirm your attendance and the name of your chosen representative (or if you need me to arrange a trade union representative for you)”. The letter was sent to the claimant by email and by post.

[42]The claimant did attend the meeting on 18 May, however, the meeting made no progress towards hearing the claimant’s response to the complaints against him. On entering the meeting, the claimant demanded to know where his Trade Union representative was. He was shouting and refused to participate in the meeting without a Trade Union representative. He claimed then (and before us) that the respondent had the responsibility to provide him with a representative and that the Trade Union had told him this. In fact, as part of his disclosure, he provided a letter written to him by his Union which stated the opposite. Although he did not suggest it to Ms Thavarajah in cross examination, he later stated she had denied him Trade Union representation saying that he did not need representation as he was going to be dismissed. We are satisfied that she said no such thing.

[43]In cross examination, the claimant suggested that he had asked his Trade Union to provide a representative for the meeting on 18 May but he was told to speak to his manager. He said initially that he did not ask her to obtain a representative for him but later told us that he did. At his request, his Trade Union has provided all of their notes of his dealings with them and these have been disclosed. It is clear that they were meticulous in recording all of those dealings. There is no record prior to 18 May of his seeking representation for that meeting and on 18 May his telephone call to the Trade Union, as noted by them, proceeded on the basis that he had unexpectedly been asked to attend a meeting the subject matter if which he was unaware.

[44]On 18 May, the claimant was, on request, supplied with the company’s duty telephone to call his Trade Union. He was pacing up and down outside the meeting room shouting at his Trade Union representative on the telephone and at Ms Thavarajah and her note taker. He falsely told the Union that at 09:00am that day he had been summoned to a meeting to take place at 09:30am, that he was unaware what this meeting was for and that he needed Trade Union representation as a result. His attempts to deny that this is what Ms Thavarajah heard him say to the Trade Union are completely undermined by the Union’s note of the conversation which says exactly that.

[45]At 09:23, that is seven minutes before his shift was to end, he left the premises without telling Ms Thavarajah that this was his intention.

[46]In the light of his behaviour on 18 May, and in relation to not attending earlier meetings, Ms Thavarajah decided to suspend the claimant on the basis that he was refusing to participate in the investigation. Whether or not that was an appropriate response to his conduct, and whether or not it would have been more appropriate to have suspended him at a far earlier stage are not matters before us. We are, however, satisfied that his suspension had nothing whatsoever to do with his race.

[47]On 20 May, the claimant made a complaint against Ms Thavarajah and her note taker, as well as against the People Manager, Vicki Young and his store manager. He complained of the sending of letters on another branch’s note paper and the failure to provide him with a Trade Union representative for 18 May meeting. He noted that there was a further meeting to take place on 01 June and that he intended to seek Trade Union representation.

[48]Ms Thavarajah felt that the claimant’s behaviour towards her was unacceptable. She felt intimidated and felt it wrong to continue in the process. As a result of the claimant’s behaviour and the complaint which he raised, it was decided that someone from the human resources team should take over the investigation, hence that meeting scheduled for 1 June was postponed.

[49]A People Manager, Mr Petrides, then took over the investigation. Mr Petrides wished to meet with the claimant. The claimant tried to avoid meeting other than at London Colney, despite the respondent offering to pay for a taxi so that the meeting could take place in a larger room. We note that this was all taking place against the background of covid lockdowns. The claimant expressed concerns that the taxi could have an accident. The claimant also said that he would not look at letters unless delivered whilst he was at work between 05:30 – 09:30 on a Monday morning. His Trade Union organiser described this as unreasonable and the claimant as very argumentative and aggressive in his dealings with her. She is a black African woman, and the claimant does not accuse her of racism. We conclude that the claimant was still doing all that he could to avoid this matter being properly investigated and progressed.

[50]The claimant and Mr Petrides eventually met on 06 July 2020. Copies of the original statements taken at the start of the process were given to the claimant to read and those original statements were read out in so far as they were handwritten. We reject the claimant’s contention, raised for the first time when he was cross examined, that all he saw at this meeting was the second page of the first complaint letter which is a page which contained only the names and signatures of the three individuals who initially complained. As the notes, which he and his Trade Union representative both signed, make clear, he was taken to the allegations and knew what was alleged against him. His only comment was to say that he could not recall any of the incidents described.

[51]It was at this stage that Mr Petrides re-interviewed three of the complainants, the fourth had left the respondent’s employment. We consider this step to have been sensible given the passage of time and that he himself had met with none of them. We reject the claimant’s contention that this second set of interviews was in some way fatal to the fairness to the whole process. The complainants maintained their stories. Mr Petrides took detailed notes, and these were typed up and were provided to the claimant in due course. These were shown to the claimant at a further meeting on 03 August 2020 at which Mr Petrides presented his finding that there was a case to go to a disciplinary hearing. Mr Petrides’ conclusions were contained in a detailed written report which he read to the claimant and the representative. The claimant refused to sign the notes of this meeting, but he suggested no corrections and his representative did sign them.

[52]The claimant’s response was to seek to appeal against Mr Petrides’ decision. The two-page appeal document does not deal with the substance of the complaints made against him, but makes very general allegations of sexism and racism over his entire employment career and makes comments about inequalities within Tesco and more generally. He also complained that his May 2020 complaint had not been dealt with noting that he had complained of aspects of Ms Thavarajah’s conduct of the investigation. The claimant was told that he could not appeal against Mr Petrides’ decision. We regard this purported appeal as a further instance of the claimant seeking to delay dealing with the complaints against him.

[53]Mr Winn, an experienced store manager of some twenty years, was asked to conduct the disciplinary hearing, he did not know the claimant but had conducted several disciplinary hearings over the last ten years of his employment, including ones dealing with allegations of race discrimination. He had dismissed staff for the use of racist language and behaviour.

[54]The letter of 13 August inviting the claimant to a meeting on 17 August provided a short summary of the allegations against the claimant, but was accompanied by copies of Mr Petrides’ report and the statements taken from the complainants. It warned of the risk of dismissal for the conduct alleged, which the claimant said to us that he accepted to amount to a very serious misconduct.

[55]That meeting lasted about one hour twenty minutes and the claimant began by claiming he had been bullied and harassed. Mr Winn tried to get him to deal with the allegations, but he repeatedly refused to engage with them. On the first occasion that Mr Winn did this, the claimant said he objected. Mr Winn reminded him that if he would not engage then he would have to deal with the matter on the material already before him. The claimant then accused him of racism. After a short adjournment, Mr Winn tried again. This time, the claimant said he did not know what was alleged against him as he could not read the documents. His Trade Union representative reminded him that these had been read to him at the meeting with Mr Petrides, we also note that the more recent statements (with which he had been supplied by the letter above) are typed.

[56]When Mr Winn next tried to get the claimant to engage with the complaints, he demanded an adjournment and started to make a telephone call. He was on this call for some ten minutes before Mr Winn decided he had little choice but to adjourn. When the meeting resumed some thirty-five minutes later, the claimant still would not engage with the complaints. He complained of Mr Petrides’ investigation, calling it incomplete. He accused Mr Winn of refusing to let him speak and he said that the allegations did not amount to misconduct. We are satisfied that Mr Winn made every effort to get the claimant to speak about the allegations, but he would not, and we note that the claimant now accepts that the allegations did amount to very serious misconduct, contrary to what he said then.

[57]The claimant says that he did engage with the allegations at the meeting with Mr Winn and that he set out a detailed defence handing to Mr Winn a large number of documents. We accept that he had a pile of documents with him in the meeting and that he occasionally looked at one or waved it making a point, but he handed none of them to Mr Winn.

[58]The notes, which he refused to sign, do not show that he did hand over documents and his Trade Union representative signed those notes. We also accept that to maintain social distancing, the meeting took place in a large room with Mr Winn at one end and the claimant at the other, some fifty metres away. The claimant’s description of him handing documents to someone sitting just across from him is not accurate. Furthermore, one document he alleged to have read to Mr Winn (and handed over) post-dated the meeting. Others, as Mr Winn noted when they were shown to him in cross examination, would have little or no relevance even if they had been produced, such as correspondence dealing with the claimant’s desire for a career break of a year, it being granted and his demand then to be returned to his old shift some two months into the career break.

[59]Once again, we consider that the claimant was refusing to deal with the complaints and behaving in an aggressive and threatening manner in order to delay matters or to cause the respondent to decide that it could not take the matter further.

[60]The outcome of Mr Winn’s disciplinary process was that the claimant was summarily dismissed. A letter setting out Mr Winn’s reasoning was sent to the claimant on 19 August 2020. He found that the claimant had behaved as alleged by the complainants and saw some parallels to how the claimant was alleged to have behaved in August 2019 and before, and how he behaved in the disciplinary meeting. He considered the allegations to amount to misconduct and to merit summary dismissal. He did not consider there to be any significant mitigation. He considered lesser penalties, but rejected them as inappropriate. He was unaware of the February 2019 complaint; he was aware of the existence of the May 2020 complaint but understood that it was being dealt with by others. He did not take that complaint into account.

[61]There were two versions of the dismissal letter supplied to the claimant. The first is almost identical to the opening paragraphs of the second but it does not give the detailed reasons for the decision summarily to dismiss the claimant. Both were signed by Mr Winn and were sent two days apart. Mr Winn could not explain why two versions were produced, but we accept his evidence that the second version recorded his views. The first letter was sent on the day of the meeting itself and we note that the meeting concluded with the claimant demanding he be given a letter confirming his dismissal there and then. We speculate that this was done and then somebody must have told Mr Winn that he needed to record his reasons in writing to the claimant even though he had given them orally and they were recorded briefly on an internal Tesco form.

[62]Meanwhile, on 17 August, the claimant raised a further complaint against Ms Young albeit that the substance of the complaint concerned Mr Petrides’ investigation. Again, the claimant made generalised comments about racism but did not deal with the allegations against him. It appears to us that this largely duplicated the failed attempt to appeal against Mr Petrides’ decision to send the matter into the disciplinary process. We consider it to be a further attempt by the claimant to delay the process or to prevent it from continuing.

[63]The claimant appealed against the decision to dismiss him. His appeal letter raised twenty-eight points. The principal focus appears to be a series of alleged procedural defects in the investigation starting with the sending of a letter on the note paper of another branch. Very little was said about the allegations against him. His contention, which he repeated before us, was the complainants were people of the same background and that he was black and, hence, they must have discriminated against him.

[64]The appeal was heard by Ms Alexander. She is a very experienced store manager trained to the highest level within Tesco’s own procedures so she can deal with disciplinary matters up director level. She is a person of colour and both her notes of her hearing and evidence before us showed her careful attention to detail and determination to understand and deal with everything put to her.

[65]Her appeal hearing took place on 28 September 2020 over a period just short of three hours. The claimant was accompanied by the same Trade Union representative who had accompanied him at the disciplinary hearing before Mr Winn. He was calm in this hearing and did engage a little more with the complaints against him by repeating his point about the complainants discriminating against him because they were all of the same broad ethnic background adding that they spoke the same language. This was not a rehearing of the case, but Ms Alexander did look at the documents which the claimant had by now obtained from his Trade Union.

[66]Ms Alexander adjourned the hearing in order to look at the documents that the claimant had produced and to consider the complaints that he said that he had made in the past. She learned that the February 2018 complaint had been withdrawn as was recorded in contemporaneous documentation and that the May 2020 complaint was ongoing and concerned the conduct of the investigation, amongst other things, all of which points the claimant has raised on appeal to her. She did not consider that these matters, or the documents produced from the Trade Union, suggested that the disciplinary decision had been wrong.

[67]The appeal hearing reconvened on 06 October. The claimant was asked to read and sign the notes of the first hearing session with which he had been supplied. He says that he refused to sign them because they were inaccurate in that they omitted much of what he had said and references to documents he had produced. In closing submissions, he first told us that the minutes were fabricated and later said that passages had been added to them. He told us that he made his reason for not signing these notes clear on the day in some detail.

[68]The notes of this resumed hearing contain no such detail. Indeed, they record him as saying that he would neither read nor sign the notes until he had heard the outcome of his appeal. He did sign these notes of the second part of the meeting and his Trade Union representative signed the notes of both of the meetings. We find both sets of notes accurately to reflect the content of those meetings. We note that when making his closing submissions, he told us that he believed these notes to have been fabricated in their entirety when trying to explain why he would sign something that he considered so inaccurate.

[69]Ms Alexander dealt with the claimant’s twenty-eight points under four headings, these were:(1) Timings and the length of time for investigation being too long,

(2) Having no recollection of having made offensive comments,

(3) Unfair investigation hearing, this relating to the investigation not being fully complete and new evidence (the Trade Union documents) not being considered, and

(4) Unfair treatment throughout the investigation and the disciplinary process.

[70]She dealt with each of those four heads in detail in her three-page written decision. In short, she considered that Mr Winn had a sound basis for finding that the claimant acted as complained of and that this was plainly gross misconduct meriting summary dismissal. The conduct of the investigation was found to be fair, and she found that the new documents did not provide a basis for suggesting otherwise. Submissions

[71]The respondent made brief submissions, counsel contended that the unfair dismissal claim (and in particular the reason for dismissal) lay at the heart of this case. He contended that it was plain and obvious that the reason for dismissal was the claimant’s conduct in relation to the complainants that this was gross misconduct, that it had been properly investigated (so as to satisfy the Burchell tests) and that dismissal for such conduct lay within the band of reasonable responses. He contended that the ACAS code, upon which the claimant laid great stress, had been satisfied.

[72]On that basis he contended that the claims for ‘ordinary’ or automatic unfair dismissal must fail and so must the claims for direct race discrimination and victimisation. Even if there were protected disclosures or protected acts, as alleged by the claimant, the reason for dismissal was wholly unrelated to them.

[73]The claimant provided a forty-seven-page set of closing submissions. It dealt with the law relating to the four heads of claim on which he relied and much else besides, including the law relating to strike outs and Rule 52 and harassment. The summary of the law on each of the four heads of claim went far beyond the matters relevant to the claims before us.

[74]Periodically, the claimant summarised his submissions in respect of factual disputes in this case over those forty-seven pages. These he enlarged upon orally. We have tried to record the significant assertions of fact and arguments in relation to them when summarising our findings of fact.

[75]The claimant cited numerous authorities, many of which were irrelevant to his claim. As regards most of the others, the points he sought to make were uncontroversial. For example, he helpfully set out the definition of what is a “reason” for dismissal in Abernethy v Mott, Hay and Anderson [1974] [ICRC23] and the three-fold test or guidance found in the decision of British Home Stores Limited v Burchell [1978] [IRLR379].

[76]In oral submissions, the claimant recognised that the various factual disputes between the parties lay at the heart of this case and his oral submissions concentrated entirely upon them.

The Law

[77]The claimant is an employee of the respondent with the qualifying service required to bring an unfair dismissal claim. We must find what was the reason for dismissal and whether it was one of the statutorily permissible reasons for a fair dismissal found in section 98(2) of the Employment Rights Act 1996. Conduct, the reason relied upon by the respondent, is one of the statutorily permissible reasons. The reason for a dismissal is the set of facts or beliefs relied upon by the respondent’s decision makers, here Mr Winn, when deciding to dismiss (see Abernethy).

[78]If the respondent can establish a statutorily permissible reason for the claimant’s dismissal (where the burden is on the respondent) then the Tribunal must turn to consider whether the dismissal was fair in all the circumstances (s.98 (4) 1996 Act). In the case of a dismissal for conduct, guidance was provided by the Court of Appeal in Burchell. We should consider whether, at the time of the dismissal, the respondent genuinely believed in the claimant’s guilt, whether it had reasonable grounds for that belief and whether it had carried out a reasonable investigation to establish and test that belief.

[79]We must also ask ourselves whether, having regard to the circumstances, including the size and administrative resources of the respondent, it had carried out a reasonable investigation. That is an investigation of the kind and extent which a reasonable employer could carry out in the circumstances facing this employer.

[80]In that and other regards, we must keep in mind the guidance provided in the ACAS code of practice on discipline and grievance procedures. This code is divided into a series of sections the nature of each of which is described in the heading to that section. We have considered the Code on disciplinary issues, in particular, and also the 2020 ACAS guide.

[81]With regards to the disciplinary penalty, it is not for us to say what we would have done and then ask whether this employer did the same. As with the investigation, there is a band of reasonable responses and a procedurally fair dismissal will be fair overall if the penalty of dismissal fell within that band.

[82]We were not addressed on the ways in which a fair appeals process can “cure” defects in the earlier process and, although we heard evidence as to the appeal, it is unnecessary to consider such matters.

[83]Where the reason or principal reason for a dismissal is the making of a protected disclosure, then that dismissal is automatically unfair (s.103 A of the 1996 Act). The respondent dealt with the law on protected disclosures very briefly. The claimant dealt with all aspects of the law in relation to that matter extensively in his written submission. The respondent tentatively questioned whether the various aspects of the test for identifying a protected disclosure could be satisfied as regards the February 2018 and May 2020 complaints, but concentrated on the assertion that the reason for dismissal was as contended for, namely conduct, and had nothing to do with any such protected disclosures.

[84]Were the respondent not to satisfy us that the reason for dismissal was conduct, the dismissal would be found to be unfair. Having regard for our findings as to the reason for dismissal set out below, we have not found it necessary to consider whether the disclosures relied upon were protected disclosures, hence we do no set out the law in this regard.

[85]We reminded ourselves, as regards the discrimination claim, of s.136 of the Equality Act 2010 concerning the burden of proof. The claimant’s submissions citied various authorities in this regard, including the well-known case of Madarassy v Numura International PLC

[2007] IRLR 246

. The claimant did not cite the most recent authorities, but we did not feel it necessary to ask the parties to comment upon them. The only issue in respect to which we had to take particular note of the burden of proof was in relation to the evidence of the claimant’s alleged comparators where the section has no impact as the claimant did not establish the basic facts.

[86]An allegation of direct race discrimination involves an exercise of comparison between how the claimant was treated and how an actual or hypothetical comparators were or would have been treated. The treatment relied upon here is the dismissal, if disparate treatment can be established, the Tribunal must decide whether the disparity was “because of” the protected characteristic relied upon here, race.

[87]The test is not (as it is for the claims considered above) whether the reason or principal reason for the disparity was the claimant’s race, but whether his race was material to the reasoning process, whether consciously or unconsciously. Or to use a phrase adopted in some cases, whether the claimant’s race was an effective or substantial cause of the conduct relied upon.

[88]Under section 27 of the 2010 Act, an employer victimises its employee if it subjects that employee to a detriment because he has carried out a protected act. A protected act is defined to include the making of an allegation by that employee that the employer or some other person has contravened the 2010 Act. The detriment here is the dismissal.

[89]An otherwise protected disclosure does not have that status if false evidence or information is given, or an allegation made, in bad faith. We consider that there would be scope arguing the material subjection to apply in this case. However, the respondent did not rely upon it and we did not invite submissions on it, hence, we did not have regard for it.

[90]The key question here, as with the direct race discrimination, is whether the dismissal was “because of” the making of either protected disclosure. The words used to frame the test for causation are now the same for direct discrimination and victimisation, hence once again, we have to ask ourselves whether the doing of the protected acts was material to or an effective and substantial cause of the dismissal. Applying the law to the facts as found

[91]We are satisfied that the reason for the respondent’s decision to dismiss the claimant was his conduct as described by the complainants and summarised in Mr Winn’s reasoned dismissal letter.

[92]Mr Winn genuinely believed the claimant to be guilty of that misconduct. He had reasonable grounds for that belief. He had the statements of the complainants, the claimant’s lack of engagement with that which was alleged against him and the claimant’s behaviour in the meetings with him to support that belief. Given the claimant’s behaviour and the clear and detailed complaints, we consider it reasonable for Mr Winn to have held that belief.

[93]There was sufficient investigation of the allegations, the claimant knew of them, had the statements and was given numerous opportunities to comment on them. We consider that the whole process took far too long but we do not consider the delays unfairly impacted the claimant. Indeed, he was the cause of much of the delay and deliberately so. The delay must have impacted on the complainants who had to work with the claimant, albeit only for four hours a week, until his suspension, but that didn’t take place until nine months after their complaints were made.

[94]We consider the investigation to have been thorough and comprehensive, far from rendering the process unfair, we consider the re-interviewing of the complainants to have been a fair and sensible step given the change in investigator and the lapse of time.

[95]The respondent took care to establish the facts, to inform the claimant of the investigations and to meet with him to discuss them. It not only allowed him to be accompanied but reminded him of his right to be accompanied and offered to help to arrange representation if that was needed. Both investigators did their best to obtain all relevant evidence before deciding on whether to refer the matter to the disciplinary process. Their failure to obtain the claimant’s detailed response resulted from his failings and not theirs.

[96]The disciplinary process was fair. The claimant was provided with all relevant information and given every opportunity to provide his responses. The fact that he never did provide a detailed response was down to him, he chose to delay or derail the process by his behaviour as described in our findings.

[97]He was given the opportunity to appeal, and that appeal was a carefully conducted and comprehensive exercise. Indeed, we consider it an exemplary and fair appeal.

[98]This was plainly a case of very serious misconduct, as the claimant eventually conceded. We consider that summary dismissal fell within the band of reasonable responses. Indeed, given the nature of the conduct and the claimant’s attitude during its investigation we consider that most, if not all employers, would have dismissed him. The alternative would have risked a continuation of this kind of behaviour as Mr Winn reasonably concluded when considering whether a lesser penalty might be appropriate against the background of the claimant’s conduct before him and earlier in the process.

[99]The claimant’s submissions suggested that there was a disparity of treatment between himself and others which demonstrated unfairness. The only comparator cases relied upon were those of the comparators relied upon for the direct discrimination claim. He has failed to establish the facts necessary to frame any such comparator. In any event, the incidents he relied upon whilst not trivial, do not show the sustained racist behaviour targeted against others which was alleged here.

[100]In the circumstances, the unfair dismissal claim must fail. This was a fair dismissal.

[101]The making of the disclosures said to be protected disclosures were not the reason or the principal reason for the claimant’s dismissal, hence his s.103A claim must fail. Indeed, it is our view that the making of those disclosures (being the February 2018 and May 2020 complaints) had nothing whatsoever to do with the decision to dismiss him. Mr Winn was unaware of the February 2018 complaint and knew almost nothing of the February 2020 complaint beyond it having been made and it being dealt with by others.

[102]The treatment relied upon for the direct discrimination claim is the claimant’s dismissal. We have already set out our views on his alleged comparators. We are satisfied that a hypothetical comparator would have been treated in precisely the same way. The claimant’s dismissal had nothing whatsoever to do with the colour of his skin, his race or his ethnicity.

[103]We proceed on the basis on the February 2018 and May 2020 complaints were protected acts. The victimisation claim must nonetheless fail for the same reason that the direct discrimination claim failed. The dismissal had nothing to do with those protected acts.

[104]It follows that each and every claim brought by the claimant fails and is dismissed.

[105]Finally, we will wish to emphasise our concerns about how long this process took. That is took far too long is obvious. We recognise that looked at in one way much of this was attributable to the deliberate actions of the claimant. However, we would have expected a large employer with an extensive and expert people or human resources team to have been able to cope much better with such conduct. Those involved with the investigation should have been helped to bring it to a conclusion far more speedily. We contrast the progress of the earlier stages of this process with the efficient and effective handling of the appeal. It is clear to us that the employees who complained against the claimant were badly served by their employer. We hope that lessons will have been learnt.

[106]Having heard the outcome of the case, the respondent indicated a present intention to make a costs application. It decided to reconsider its position in the light of our reasoning and comments. In those circumstances any such application should be sent in writing to the Tribunal and no later than 6 March 2023. The claimant should send any written comments or response to that application by no later than 3 April 2023. EMPLOYMENT TRIBUNALS Claimant Respondent Mr George Ferguson-Haizel v Tesco Stores Limited REFUSAL OF THE CLAIMANT’S APPLICATION FOR RECONSIDERATION OF THE JUDGMENT SENT (WITH REASONS) TO THE PARTIES ON 23 MARCH 2023

The Law

[1]This application is refused under Rule 72 of the Rules of Procedure on the grounds that, for the reasons summarised below, there is no reasonable prospect of the judgment being set aside or varied.

[2]The application is made by a 12 page statement containing 75 paragraphs. Although the text contains a number of what might appear to be headings highlighted in bold, the text beneath them does not necessarily relate to the apparent heading. Hence, I have tried to identify the particular points being made from the text itself.

[3]Paragraph 2 deals with freedom of speech and maintains that the freedom to speak inoffensively is not worth having. It was not alleged by the Claimant at the hearing that his dismissal was unfair because it infringed the right to freedom of expression. As we found, for most of the material period he refused to engage with the allegations against him. However, before us he agreed that what he was alleged to have done amounted to gross misconduct.

[4]The reference to the 30 January application in paragraph 3 is not understood. We dealt with all preliminary issues put before us and considered the considerable number of email and letter exchanges between the parties where material to our decision.

[5]Paragraphs 4 and 5 deal with the reason for dismissal. We set out our detailed reasoning on this bearing in mind (and rejecting) the Claimant’s assertion that he was dismissed for making protected disclosures. These paragraphs repeat points made to us. Paragraphs 15 to 23 seek to summarise parts of the Claimant’s arguments with regard to his being dismissed for making protected disclosures. Our material findings of fact and the application of the law to them are set out in our Reasons. Repetition of arguments already dealt with does not justify a reconsideration of a judgment.

[6]Paragraphs 6 to 13 summarise parts of the evidence on which we made detailed findings of fact. They in no way suggest that our findings omitted to deal with any key matter.

[7]Paragraph 14 deals with the Claimant’s failures to be selected for the Respondent’s apprenticeship scheme. We touched on this in our findings. It was referred to by the Claimant, but was not the subject of any claim for unlawful discrimination before us. Hence, it formed part of the background and was said to support the Claimant’s assertion that people of colour were prevented from advancing themselves. Save that he was black and was not accepted onto the programme, the Claimant had no evidence to support this broad assertion and, as we noted, two of the three managers giving evidence before us were women of colour. He gave confused evidence as to alleged unauthorised absence in 2012, to which he refers in paragraph 26. We did not find it of help, or relevance, given the passage of time and the fact that it was impossible to pin down what the Claimant was alleging. The brief reference to it in this application provides no basis for a reconsideration of the judgment. He also raises an incident in 2013 in paragraph 54 which he says demonstrates race discrimination. It related to his being granted a career break of a year and then insisting on curtailing it (and returning to his old shift pattern) after 2 months. We dealt with this in our Reasons. We did not regard it as of great significance and, for the avoidance of doubt, although the issue of whether the Respondent acted as it did because of his race was not before us we would have rejected this. The Respondent was initially reluctant to give the Claimant his old shifts back because they had been allocated to others and it had been made clear to him that when he returned after a year there was no guarantee that he would be given those shifts. Again, this provides no basis for a reconsideration of the judgment.

[8]In paragraphs 25 and 30 (and elsewhere) the Claimant relies upon the delay in dealing with the allegations against him. We dealt with that delay. We criticised the Respondent for it, but noted the difficulties it had experienced in dealing with the Claimant and found that his conduct was intended to delay investigation of the matter and then the consideration of it at a disciplinary hearing. As these matters were addressed both before us and by us, they provide no basis for a reconsideration.

[9]Paragraph 29 deals with the availability of cctv footage of the meeting of 18 May. What happened at that meeting (which was controversial) was considered by us in detail. We did not deal with the possibility of cctv evidence assisting the Respondent. The evidence we heard (which the Claimant did not challenge) was that the evidence was of very limited assistance as it showed part of the corridor outside the meeting room and had no sound. Crucially, as we found, the disputes as to how the meeting progressed could be resolved by looking at the notes of the Claimant’s telephone call with them provided (at his request) by his trade union. Those notes recorded a version of events entirely consistent with the Respondent’s witness and he provided them to the Respondent. The alleged failure of the Respondent to find that the cctv evidence supported the Claimant is not a new matter. It was raised at the hearing. It is not one of great significance (for the reasons given above) and provides no basis for a reconsideration.

[10]Paragraphs 36 to 40 are mainly concerned with revisiting the issue of who was responsible for arranging for a trade union representative to attend the meeting of 18 May (and earlier proposed meetings). We dealt extensively with this in our Reasons. The Claimant’s desire to reargue the point does not provide a basis for reconsideration.

[11]Paragraph 43 contains a summary of the Claimant’s criticisms of the appeal hearing. We made detailed findings on that and there is no basis set out for reconsidering them.

[12]Paragraph 44 contains an assertion that the Respondent acted contrary to s.146 of the Trade Union and Labour Relations (Consolidation) Act 1992. No such claim was before the Tribunal. In any event, the factual basis of the assertion appears to run contrary to the Tribunal’s factual findings. There is no basis for any reconsideration of the judgment.

[13]Paragraph 48 appears to be a criticism of the Tribunal’s approach to ascertaining the issues in the case. The route to their ascertainment and the Claimant’s attempts to re-open claims already dismissed are summarised at the beginning of the Reasons. This very general assertion provides no basis for reconsidering the judgment on the matters before the Tribunal.

[14]Paragraph 52 seeks to re-open the issue of the earlier complaint had been withdrawn. That issue was considered by us as was its relevance. The withdrawal of the complaint was not even considered by the dismissing manager, as he was not made aware of it. The Claimant restating his position provides no basis for a reconsideration.

[15]Paragraphs 56 to 75 contain some analysis of the Claimant’s understanding of certain principles relating to direct race and sex discrimination and, latterly, associative discrimination. It does not appear that the Claimant is suggesting that our summary of the law is wrong, or materially incomplete, or that we misapplied the law. Hence, these paragraphs provide no basis for any reconsideration of the judgment.