Mr L Ramos v Lady Coco Ltd T/a Shamela’s Fresh Hot and Cold Food: 4110531/2021

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4110531/2021

Between

Mr L RamosClaimant

Lady Coco Ltd T/a Shamela’s Fresh Hot and Cold FoodRespondent

Before

Employment Judge D Hoey

Date 1 March 2023

JUDGMENT

The argument in respect of s13 Equality Act 2010 contained in the claim is struck out.

REASONS

The claimant was ordered to pay a deposit of £50 by 3 January 2022, or within 21 days of the issue of the Deposit Order, following a Preliminary Hearing held on 7 December 2021 in respect of which judgment was issued to the parties on 13 December 2021. The Deposit Order was sent to the claimant on 13 December 2021. Case No: 4110531/2021 Page 2 The claimant’s subsequent email communication of 4 January 2022 sought extension of two weeks to pay the deposit in order to prepare an application for reconsideration of the judgment issued to the parties 13 December 2021. In terms of Rule 71 of the 2013 Rules of Procedure such a reconsideration shall be made within 14 days of the date the written judgment was sent. No such reconsideration was made within the 14- day period and the request is refused. The claimant has failed to pay this deposit. The claimant’s argument in respect of s13 Equality Act 2010, being the sole argument contained in the claim, is therefore struck out in accordance with Rule 39(4) of the 2013 Rules of Procedure. JUDGMENT ON RECONSIDERATION The Judgment of the Employment Tribunal is that:(1) Judgment dated 9 December 2021 and issued 13 December 2021 is revoked; and

(2) Judgment dated 10 January 2022 and issued 11 January 2022 is confirmed as revoked. REASONS

Summary

[1]The Tribunal has now set aside Deposit Order dated 9 December 2021 and issued 13 December 2021.

[2]In consequence, and in accordance with Rule 70 of the 2013 Rules, the Tribunal on reconsideration, being satisfied that it necessary in the interests of justice to do so, now revokes associated Judgment dated 9 December 2021 issued to parties on 13 December 2021, and also confirms as revoked the judgment dated 10 January 2022 issued 11 January 2022. EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4110531/2021 Hearing held remotely (at Glasgow) on 14 September 2022 Employment Judge D Hoey Members: F Paton and S Keir Mr L Ramos Claimant In Person Lady Coco Ltd Trading as Respondent Shamela’s Fresh Hot and Cold Food Represented by: Ms Yeo - Director UNANIMOUS JUDGMENT OF THE EMPLOYMENT TRIBUNAL A preparation time order is issued in favour of the respondent requiring the claimant to pay to the respondent the sum of £697 (SIX HUNDRED AND NINETY SEVEN POUNDS), being 17 hours at £41 per hour, the Tribunal having found that the claimant acted vexatiously and unreasonably in bringing the claim and because the claim had no reasonable prospects of success, pursuant to regulations 76 and 79 of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.

Background

[1]Following an oral judgment having been issued dismissing the claims, the respondent made an application for a preparation time order. The parties were given the opportunity to consider the position, in light of the facts found and reasons given for the judgment. The claimant had submitted written submissions and he spoke to them. The respondent presented their position and the claimant was able to respond.

[2]The Tribunal had unanimously found that the claimant had raised a claim of sex discrimination against the respondent to seek money from them, following an unlawful advertisement that had been posted by the respondent which the claimant saw online. The Tribunal found that while the advertisement was unlawful, the claimant had no genuine desire to apply for the role. While the claimant alleged he did not know the law, his submissions had made it clear that he fully understood the law. The most recent Employment Appeal Tribunal judgment confirmed that the law was in fact clear. That was something known to the claimant. The claimant was intelligent and articulate and had shown an understanding of the law during the hearing together with the practice within Employment Tribunals.

[3]The Tribunal had found that the claimant had no genuine desire to apply for the role (or work in it) and the sole purpose of his claim to the Tribunal was to seek money from the respondent during the process. Law

[4]In terms of rule 75 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 a preparation time order is an order where the paying party pays the receiving party in respect of the preparation time when they were not legally represented (excluding time spent at the final hearing). The order in this case only covered the time when the respondent was not legally represented.

[5]Rule 76 states that an order can be made if(a) the party acted vexatiously, abusively or otherwise unreasonably in the bringing of the proceedings or in the way the proceedings were conducted or

(b) where the claim had no reasonable prospects of success.

[6]Rule 77 states that the paying party must have a reasonable opportunity to make representations before an order is made.

[7]The amount of a preparation time order is set out in rule 79 and is determined by the Tribunal assessing the number of hours spent preparing for the case when not represented and what the Tribunal considers is reasonable and proportionate with reference to the complexity of the proceedings and the documents required. The applicable rate given the date of this claim is £41 per hour.

[8]Rule 84 allows the Tribunal to have regard to the paying party’s ability to pay.

The law

[9]Any sum awarded should be proportionate and not punitive. The amount awarded should therefore be no more than is proportionate to the loss caused by the unreasonable conduct in question.

[10]In Hossaini v EDS

2020 ICR 491

at paragraph 64 the Court confirmed that a 3 stage process should be followed in considering this issue. Firstly is the threshold met for considering the making of an order? If so, secondly, is it appropriate to make the order (applying discretion judicially) and finally how much should be awarded applying the rules above.

[11]With regard to whether or not a litigant has acted “otherwise unreasonably”, the key question is whether the act was unreasonable. It is not whether the Tribunal would have acted differently but whether the decision taken by the litigant was reasonable in all the circumstances, applying a wide objective test (See Brooks v Nottingham

UKEAT/0246/18

). A party litigant should be given greater latitude and the position assessed from their perspective.

[12]In Daleside Nursing v Matthew 2009 All ER (D) 99 it was noted that a claimant who has lied may be found to have acted unreasonably but that is not automatically the position. Similarly giving false evidence does not automatically mean the claimant acted unreasonably. The Tribunal should look at the whole picture and consider what happened in the case.

[13]It is a question of fact whether conduct is unreasonable (Arrowsmith v Nottingham

2011 EWCA Civ 797

Conclusion

[14]Vexatious conduct is rare and the threshold to be vexatious is extremely high. To be unreasonable the claimant need not be aware of the nature of the conduct (since an objective assessment of the conduct and its effect should be considered within the full context). Vexation requires a degree of knowledge. A claimant who pursues a claim knowing it is false or that it has no reasonable prospects or who acts with malice may be vexatious, but not necessarily so. A careful assessment of the full factual matrix should be carried out.

Conclusion

[15]Whether or not a claim has reasonable prospects of success is looked at from the claimant’s perspective at the time the claim is raised. It is important not to assess matters as if the claimant was a solicitor. Submissions

[16]The Tribunal heard submissions from both parties, with the parties having been given time to consider their respective positions overnight. The claimant produced further documents in support of his position, including 11 documents and an 8 page submission (to which the claimant spoke), all of which were taken into account by the Tribunal in full in considering its decision. It is not necessary to repeat those submissions which are in the case file.

[17]The Tribunal firstly considered whether or not the jurisdiction to make the order had been engaged. The Tribunal was satisfied that the claimant had acted vexatiously in bringing the claim. The claimant had no genuine desire to apply for the role or work for the position. The purpose of the claim was solely to seek money from the respondent as a result of its unlawful advertisement via the Employment Tribunal process. The claimant was aware that the claim was false since he had no intention of moving his life to Scotland to work in Ruchill. The claimant pursued a claim knowing it had no prospects of success and was solely seeking money from the respondent. The Tribunal considered that the high bar of establishing vexatious conduct had been met in this case. The Tribunal did not reach that conclusion lightly given how high the bar has been set in establishing vexatious conduct but having assessed the evidence led, the Tribunal concluded the claimant had acted vexatiously.

Law

[18]The Tribunal was also satisfied that the claimant had acted unreasonably in bringing this claim. Looking at matters from the claimant’s position and from his perspective in light of what he knew, he knew the law and how the Tribunal process worked. He knew that a claim is only stateable where there is a genuine desire to apply for the role. The law had been set out in a number of the other claims in which the claimant was a party. The claimant had no such desire or intention. He acted unreasonably in bringing a claim against an employer where he had not in fact applied for the position and had no intention of taking on the role (evidenced by the fact the had not submitted an application for it and the context). He also knew how costly and inconvenient the process is and how that would impact upon a potential employer. Armed with that knowledge he made the claim in an attempt to seek money from the respondent. The Tribunal assessed the evidence and concluded the claimant had acted unreasonably.

[19]Finally the Tribunal was also satisfied the claim had no reasonable prospects of success and the claimant was aware of that at the time he raised it, looking at the position from the claimant’s perspective (as a party litigant). The claim was presented with the claimant knowing he had no intention of applying for the role. While he attempted, after the event, to seek to justify why he had not made an application, the Tribunal did not accept that evidence and considered that the claimant had sought to justify that position after the event. The Tribunal was satisfied the claimant knew precisely what he was doing and had no genuine desire to apply for the role in this claim. It was solely an attempt to seek compensation from the respondent.

[20]The jurisdiction pertaining to the making of a preparation time order was therefore engaged.

[21]The second question was whether it was appropriate to make a preparation time order. The fact the test for the order has been met does not automatically mean it is appropriate to make an order and the Tribunal should consider the full factual matrix. The Tribunal considered the full facts before it in reaching its conclusion. The Tribunal was satisfied that it was appropriate on the facts of this case to make the order. The claimant was articulate and intelligent. The claimant knew the process, the rules and the law. He knew what the impact upon the respondent would be. This was a case where it was just to consider making the order. The claimant had acted vexatiously and otherwise unreasonably in bringing this claim. He knew it had no reasonable prospects and used the Tribunal process to seek to obtain money from the respondent. Exercising our discretion judicially and considering al the circumstances given the facts in this case the Tribunal decided that it was in the interests of justice to make a preparation time order.

The law

[22]Finally the Tribunal considered the amount that should be awarded given the legal principles above. The Tribunal considered the nature of the claim its complexity and the position carefully in respect of the time when the respondent was not legally represented. The Tribunal accepted that in part the respondent had not fully complied with orders that had been issued which had led to some further procedure and the respondent’s approach was taken into account. The Tribunal also took account of how the claimant had conducted this case.

[23]In all the circumstances the Tribunal decided that it would be fair and just to make a preparation time order in respect of 17 hours. While the respondent argued that it had spent a significantly greater amount of time preparing for this case, the Tribunal was satisfied that 17 hours was reasonable and proportionate taking account of the nature of the claim, the documents involved, the way the claim had been conducted and each party’s actions, in respect of the vexatious and unreasonable conduct of the claimant.

[24]The Tribunal expressly took into account the claimant’s financial position. He argued that he had no additional funds (with little by way of savings and his income (from being a self employed interpreter) covered his outgoings). Nonetheless the Tribunal was satisfied the sum ordered was something that was just, fair and reasonable and something that the claimant could pay from his income.

[25]The Tribunal considered that the sums awarded could be met by the claimant from his income and savings. It was appropriate to make the award as it was just to do so. Claimant’s submissions

[26]In reaching its decision the Tribunal carefully considered all the points the claimant had made in his objection to the respondent’s application. Many of the issues the claimant had raised were not relevant to the key issue of this application. He focussed upon arguing that the respondent had breached the law and issued a fake advert. The Tribunal did not accept that the advert was fake. It was accepted that the advert breached the terms of the Equality Act. Neither points were relevant as to whether or not the claimant had acted vexatiously or otherwise unreasonably or in bringing a claim that he knew had no prospects of success in light of the facts.

Conclusion

[27]The claimant also made references to various acts of the respondent which, the claimant maintained, were further acts of misconduct or examples of the respondent not complying with the orders of the Tribunal. These were matters the Tribunal took into account in assessing what a reasonable amount of time should be in assessing the order. The issues did not impact upon the decision as to whether the threshold for making the order had been met (which focused on the claimant’s actions and the legal test in light of the rules). There was no basis for raising this claim and this was known by the claimant. He used the Tribunal process to seek money from the respondent and had no genuine desire to apply for the role that had been unlawfully advertised.

[28]The claimant made a number of submissions as to the respondent’s failure to provide the advert prior to the hearing. The respondent had indicated that it did not have the advert in its possession. In any event the claimant had produced the advert to which he had responded and both parties had been content to proceed upon the basis that this was the relevant advert. The respondent’s acts had no bearing upon whether or not the claimant’s actions were such as to justify the order sought by the respondent.

[29]The claimant also argued that the Tribunal overlooked the explanatory notes in the Equality Act that parties may be deterred from making an application to a discriminatory advert. As explained in the Tribunal’s judgment (and reconsideration judgment), this was something the Tribunal took into account. The Tribunal found the claimant not to be credible and found that these were matters the claimant had considered after the event in an attempt to explain why he had not made an application. The Tribunal found the claimant to be articulate and intelligent and in no way deterred from making an application nor from contacting the respondent to discuss the position (or the advert). The claimant was in no way deterred from making an application; He chose not to do so as he was not genuinely interested in the role.

[30]The claimant also argued the Tribunal overlooked evidence that parties may be psychologically prevented from applying from roles which they have little prospects of securing. The Tribunal did not overlook that point and specifically considered it. The Tribunal found, as a fact, that the claimant had not been deterred from applying for the post nor from responding to the advert. While there was evidence that some may be deterred, the Tribunal found the claimant had obtained this information in an attempt to seek to explain why no application had been made, but that it was not in fact a reason why the claimant did not apply. The only reason why the claimant in this case did not apply for the role was because he had no genuine desire to take up the role and his sole motivation in raising these proceedings was to seek money from the respondent.

The law

[31]The claimant also argued that the Tribunal overlooked the “injury to feelings the claimant sustained” as a result of seeing the discriminatory advert. The Tribunal did not overlook this issue. That issue was not relevant in determining whether or not the claimant had a genuine desire to carry out the role that had been advertised in an unlawful manner. He was not unlawfully discriminated against and could not therefore suffer injury to feelings, there being no unlawful act relative to the claimant.

[32]The claimant argued that he did not know what he had “done wrong because to issue a claim because of a discriminatory advert is not bad conduct because it was up to the respondent not to post it”. The Tribunal considered this submission in detail. It was not in dispute that the advert was unlawful. The issue was whether the claimant had any desire to take the position that was advertised. If he had established a genuine desire, he would have a statable claim. From the facts, the Tribunal found there was no such desire. Further the only purpose of the claim being raised was to seek money from the respondent. The issue in this case is not the respondent posting the unlawful advert but the claimant seeking to use the Tribunal system to seek money for himself for a role in respect of which he had no genuine interest. Issuing the claim in such circumstances was vexatious and amounted to unreasonable conduct. The claimant knew when he raised this claim that there were no reasonable prospects of success. It is for those reasons the order was made.

[33]The claimant argued that the respondent had acted unlawfully. That was not, however, relevant for the purposes of the respondent’s application given the legal position and facts as noted above. Discriminatory adverts are matters in respect of which the Equality and Human Rights Commission has the power to consider. The Equality and Human Rights Commission has a significant amount of material about this on its website which is easily identifiable. See: https://www.equalityhumanrights.com/en/advice-and-guidance/how-reportdiscriminatory-advert https://www.equalityhumanrights.com/sites/default/files/ehrc_advertising_- _make_inquiries_12.pdf

[34]The claimant further submitted that: “The only problem is that I do not live in Scotland and I would not have applied for the position but we have to take into account the difference in costs of living between London and Glasgow, that the position was near a “beautiful area” and that I was deterred from applying because the discriminatory contents of the advert as confirmed by an example in the “Explanatory Notes” of the Equality Act 2010”. These were matters the Tribunal took into account but did not accept. The claimant was not credible and his evidence was not accepted by the Tribunal, having carefully considered each point he raised.

[35]The claimant also argued that “According to the Equality Act 2010 there is only one “shifting of the burden of proof” because the victim of discrimination has to prove that an advert requiring a female exists and then the burden of proof is shifted to the employer to prove that it has an “occupational requirement”“. The Tribunal considered this issue. The Tribunal had explained to both parties at the outset of the hearing that as the respondent had accepted the advert was unlawful, the only issue that required to be determined in this case (as a result of prior robust case management) was whether or not the claimant genuinely wished to apply for the position. Issues as to the lawfulness of the advert were irrelevant (including any issue around occupational requirements, which was not relied upon by the respondent), the matter having been conceded by the respondent.

[36]Finally the claimant made 2 submissions with regard to fairness. He said: “It is not fair that in addition to being a victim the victim has to go through the ordeal of proving also that it was interested in the position which is something which is difficult to prove with certainty because it is subjective. Hence, the “default position” is that it is up to the respondent to prove its accusation because this issue is not regulated by the Equality Act 2010 because it does not make any reference to it” and “There is also the issue of fairness because it is not fair that not only the respondent gets away with discrimination by having posted several discriminatory adverts and having committed four other acts of bad conduct and is also awarded a preparation time order”.

Conclusion

[37]The Tribunal considered each of these issues carefully. The claimant was not a “victim” in this case as he had no desire to carry out the role that was advertised in this case. He was therefore subjected to no detriment and the approach taken and decision was fair and in accordance with the law. The law is clear. An individual with no desire to apply for a role cannot be subject to unlawful direct discrimination as a result of that since there is no detriment in not being offered a role in respect of which the individual has no interest.

[38]Finally, this matter was not about the “respondent getting away with discrimination”. The advert was unlawful (and a remedy in respect of that law elsewhere). This application related to the claimant’s conduct and the rules pertaining to a preparation time order and the time the respondent required to expend in dealing with this issue as a consequence of his conduct.

Summary

[39]In reaching its decision the Tribunal paused to consider the overall circumstances and the fairness to both parties. The Tribunal took account of the fact that the advert was unlawful. The Tribunal also took account of the reasons why this claim had been raised and the claimant’s knowledge of the claim’s prospects and his motivation in raising this claim together with the amount of time the respondent had spent in defending it when not legally represented. Having taken a step back the Tribunal was unanimous in being satisfied from the evidence led before it and from having considered the applicable law that the decision it reached was fair and just in all the circumstances.

[40]A preparation time order was therefore issued in favour of the respondent requiring the claimant to pay to the respondent the sum of £697, being 17 hours at £41 per hour, the Tribunal having found that the claimant acted vexatiously and unreasonably in bringing the claim and because the claim had no reasonable prospects of success, pursuant to regulations 76 and 79 of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.

Background

[1]This was a claim for sex discrimination raised in a claim form presented on 28 July 2021. The hearing lasted 3 days (which included deliberation, issuing oral judgment and dealing with an application for a preparation time order in respect of which an oral judgment was issued). The case had been subject to considerable case management following a number of applications by the claimant.

[2]The claimant had also sought reconsideration of the judgment and detailed written reasons were issued explaining why there was no reasonable prospect of successfully revoking the judgment.

[3]As the parties not legally represented the case begin with a discussion as to the rules with regard to the claim being made and the procedure followed and how evidence is led and a decision reached. This covered the importance of the overriding objective, of the need to ensure that all decisions area just and fair and that the parties work together.

[4]The parties had provided their own papers to which the Tribunal had regard. The claimant had produced one bundle with 26 documents with further documents produced. The respondent produced a number of documents (including copies of other claims raised by the claimant and responses to issues the claimant had raised).

[5]The respondent had accepted that an advert which they had placed online to work in a Chinese restaurant in Glasgow stated “female takeaway staff needed” which the respondent accepted was unlawful. The only issue was whether the claimant genuinely wished to apply for the position since if he had, he had been unlawfully discriminated against but if he had not, there was no less favourable treatment.

[6]The hearing was conducted remotely. While there were some connection issues, both parties were able to full participate in the hearing. The claimant gave evidence orally with him having submitted a written witness statement and a number of written submissions which the Tribunal considered. Only the claimant gave evidence which he did orally and having provided a written witness statement (running to 16 pages which was produced on the morning of the hearing). Facts

[7]The Tribunal was able to make the following facts from the evidence presented orally and in writing having assessed the evidence led.

[8]The claimant was born in 1964 and stayed in Hounslow London. He came from France in the 1990s. He had been a legal adviser, worked in a factory and restaurant and had been a self employed interpreter and market researcher. He had a masters degree in international trade law and accountancy and had an AAT Certificate in accounting. He had worked in market research and IT. He received an income from part time translation work and market research.

[9]The claimant had last worked in hospitality in the 1990s. He had no connection with Scotland nor genuine interest in moving his life to Scotland. He was settled in Hounslow, London.

[10]The respondent was a Chinese restaurant based in Ruchill, Glasgow.

[11]The claimant searched online and saw the advert for the position in Ruchill, Glasgow. The advert said: “Takeaway female staff who can speak English fluently needed to join Shamila’s café near the beautiful area of Ruchill park. The candidate needs to help in customer service and helping in the kitchen. The selected candidate also needs to work the weekend full time but he/she will have 2 days off during the week. The salary is negotiatable and depends on your experience”. A mobile number then followed for contact details, with the location being given.

[12]The role was based in Ruchill, an area of high deprivation with social challenges in Glasgow.

[13]The claimant did not contact the respondent to enquire about the role nor take any steps to seek information about the position. He did not apply for the role nor contact the respondent to discuss it.

[14]The claimant had not applied for other roles in Scotland. He had applied for a number of roles in England and Wales (usually where there was a similar advertisement).

[15]The claimant had raised a number of claims against employers who had placed similar advertisements seeking compensation arguing the advertisements were unlawful sex discrimination. Judgments were issued and the applicable law was clear. See (for example) 2601315/2021, 3302095/2020, 1402393/2020, 3331562/2018, 2303987/2018, 3318989/2019, 1805271/2019, 3313977/2019, 2206048/2019, 3327155/2019, 2204604/2020 and 3318988/2019. There are others. Some of those judgments set out the legal position, including that jurisdiction for unlawful adverts rests with the Equality and Human Rights Commission (see paragraph 33 of 2204604/2020) and around costs, including vexatious conduct (see paragraph 31 to 32 of 2204604/2020).

[16]In relation to the current role, the claimant had no genuine intention of applying for the position with the respondent. His sole aim was to seek money from the respondent (which he would seek to do by raising an Employment Tribunal claim against the respondent and thereafter seek compensation from the respondent during the process and then withdraw his claim).

[17]The claimant received an income from being a self employed interpreter and from some market research work he did. He was an articulate and intelligent person who was capable. Observations on the evidence

[18]The Tribunal did not find the claimant to be credible and found him lacking in candour. The claimant argued that he was genuinely interested in the role and said he thought about moving to Glasgow as the cost of living was less than in London. The Tribunal did not accept the claimant’s evidence.

[19]The claimant had not worked in hospitality since the 1990s. The claimant had made no effort to research life in Scotland, life in the location or the role in question. While the claimant had said he wished to move to Scotland because the cost of living was less, the Tribunal considered that was an issue the claimant had contrived as an explanation following the raising of this claim. The claimant was not convincing. The Tribunal was satisfied the claimant in fact had no intention of applying for this particular role.

[20]The claimant argued that another reason he wished to move to Ruchill was because the advert had referred to the location as being near a “beautiful park”. The claimant had made no effort to test the veracity of that assertion to check whether the place the claimant was allegedly intending to live and work was in fact suitable for him (or anything about the “beautiful park”).

[21]The claimant presently lived with a friend in Hounslow and argued that he would move to a hostel in Glasgow, but had made no effort to locate any such hostels. The Tribunal did not accept this evidence and considered that he was seeking to justify the position after the event.

[22]The claimant said he changed his mind soon after applying and that was why the claimant had made no other applications for work in Scotland. The Tribunal did not consider that the truth given the claimant’s earlier assertion that he considered the location to be near a beautiful park and the cost of living was (allegedly) less. Instead the Tribunal found that the claimant did not in fact want to work in Scotland at all.

[23]The claimant was articulate and intelligent and capable of carrying out this role and others and given his qualification and earning capacity he was clearly able of applying for any such role he wished. The Tribunal did not accept his evidence that he had genuine intention of moving to Scotland to start a new life given the nature of the particular role, the claimant’s background and the surrounding circumstances. The claimant was wholly unconvincing.

[24]The claimant had not made an application for the role, arguing that he was deterred because of the nature of the advertisement. The Tribunal did not accept that assertion. While the claimant had found some evidence to back up that assertion, the Tribunal considered that this had been material the claimant found after the event in an attempt to seek to persuade the Tribunal as to the position. As a matter of fact, the Tribunal did not consider the claimant to be at all deterred from applying for the role. He was clearly capable of doing so and clearly capable of setting out his position. He was articulate and understood the law. If the claimant was genuinely interested in applying for the role he would have contacted the respondent (whether in writing or otherwise) and asked to be considered. Had he done so, it was highly likely he would have been considered for the role and could even have been successful. The claimant was demonstrably able to explain what he was seeking and why. The existence of the advert in no way materially affected that matter or the claimant.

[25]The Tribunal did not accept the claimant’s evidence that a reason he had not applied for the role was because (in his opinion) the advert was “fake”. The Tribunal was satisfied the advert was genuine and the claimant’s assertion had been contrived following the raising of the claim to seek to support his position. There was no reasonable basis at the time the claimant saw the advert for him to believe the advert was fake. The claimant saw the advert and believed this was an opportunity for him to seek money from the respondent given the unlawful nature of the advert. The claimant argued that the advert was fake because it asked for a female when there was no need for a female. The Tribunal did not accept that the advert was fake and the claimant’s submission was based solely on a belief with no attempt whatsoever to contact the respondent or to verify the position in some way. The Tribunal did not accept the purpose of the advert was for identity fraud and there was no plausible evidence of this. While the advert referred to a female worker it did refer to “he/she” and if the claimant was interested in the role he would have made some contact with the respondent or taken some steps given the impact upon the claimant’s then current circumstances.

[26]The Tribunal considered that the claimant’s explanation that he wished to avoid conflict (and hence did not contact the respondent to apply for the role which he believed would be contentious as he was a man) lacked credibility. The claimant was capable of setting out his position given his clear understanding of the law and his skills. He was articulate. If he genuinely wished to be considered for the role there was no basis in fact that prevented him from contacting the respondent nor from at least applying for the role.

[27]The Tribunal did not accept the claimant’s explanation (in his written case which did not feature in his oral evidence) that the reason he did not apply for this position was because he did not meet all the criteria and each time he provides his CV to a third party that is confidential information which increases the chance of ID fraud. He wrote that he could only take this risk when there is a chance to be successful where he meets all the criteria, including being a female. He then said that he “cannot afford to waste time replying to discriminatory adverts for positions which he had no chance to be successful”. The Tribunal found this not to be the factual position. Firstly the claimant is no different to every other genuine applicant for a role with regard to production of a CV and if an applicant wishes to be considered for the role a CV should be provided. There was no evidence that the chance of ID fraud from a CV was anything other than relatively low (and the claimant was no different in this regard from anyone else who genuinely wished to be considered for the role and could filter his CV accordingly). Secondly, the claimant made no effort to check with the respondent. While reference in the advert was to “female” the advert referred to “he/she” (which makes sense given the role is not obviously a role that only female could do, a point known by the claimant given he notes this was not a role only a female could do) and there was no reasonable explanation for the claimant not making enquiries in this case. If the claimant was genuinely interested in this position, given the context of this case, he would have taken some steps to contact the respondent and research matters. He did none of that.

[28]The claimant also argued that he did not want to mislead the respondent by applying and had he applied he could be accused of being dishonest “by applying only to claim compensation because the claimant knew he had no chance to be successful because he is not female”. This was illogical. Had the claimant genuinely wished to apply for the role he would have done so. He knew the role was a role that did not genuinely need a female only. It was ironic to say he did not apply in case he was believed to be seeking compensation and then seek compensation when not applying for the role.

[29]The claimant also suggested in his written submission that it was common sense that a male would not apply for the role. That would be so if the male was not genuinely interested or the role was obviously not suited but a male who was interested in this particular role, in the Tribunal’s view, would take some steps and make an application.

[30]With regard to applying for other roles, the Tribunal found the claimant evasive and lacking in credibility. The claimant had been asked about other roles for which he had applied but he refused to answer the question. The claimant alleged he was at risk of “victimisation” if he disclosed the fact that he had applied for other similarly advertised roles, such a question was relevant given it affected the claimant’s credibility (since the respondent argued that the claimant’s approach was to raise claims in similar situations where the claimant had no intention of applying for roles). The claimant had been advised that such an issue was potentially relevant and could be raised at the hearing during discussion at an earlier preliminary hearing.

[31]The claimant was warned that his refusal to answer the question would be taken into account in assessing matters. The claimant continued to refuse to confirm that the claims the respondent had identified (as set out above) were claims the claimant had raised, which were public judgments issued on the Employment Tribunal website, despite the details of such claimants being identical to that of the claimant.

[32]In short, the Tribunal was satisfied from the evidence presented that the claimant had no genuine desire of applying for the role the respondent had advertised. He was solely using the Tribunal process to seek money from the respondent. Legal principles

[33]In order to claim unlawful discrimination there requires to be less favourable treatment. The authorities are clear that there is no less favourable treatment if the claimant had no genuine intention of applying for the role. In other words the protection does not apply to individuals who had no intention of taking a job even if offered it – as there would be no detriment in being rejected. See Keane v Investigo

UKEAT/389/09

[34]In Berry v Recruitment Revolution

UKEAT/190/10

at paragraph 29 the President of the Employment Appeal Tribunal (LJ Underhill) said: “We wish, however, to emphasise that the purpose of the Regulations is not to provide a source of income for persons who complain of arguably discriminatory advertisements for job vacancies which they have in fact no wish or intention to fill, and that those who try to exploit the Regulations for financial gain in such circumstances are liable, as happened to the Claimant in the Investigo case, to find themselves facing a liability for costs.”

[35]These principles were applied to the predecessor to the Equality Act 2010 but have recently been confirmed as equally appliable to the current law. This was applied in Garcia v Leadership

2022 EAT 22

where Williams J set out the law as follows: “48. In terms of the relevant circumstances that will give rise to unlawful direct or indirect discrimination, section 39(1)(a) Equality Act provides that an employer must not discriminate in the arrangements he makes for deciding to whom to offer employment. In contrast to some of the other forms of conduct by employers that are included in section 39, there is no explicit requirement that the person in question (B) must have been subjected to a detriment. However, the EAT has determined that the claimant must have been genuinely interested in the advertised job to be able to rely upon section 39. In Keane v Investigo & Ors

UKEAT/0389/09

(“Keane”) the claimant unsuccessfully argued that it was unnecessary for her to show that she was genuinely interested in the roles advertised and it was sufficient if the terms of the advertisement indicated age discrimination. Underhill P observed that the definition of direct discrimination, requiring “less favourable treatment” and the concept of indirect discrimination requiring the claimant to have been put at his or her “disadvantage” both connoted the need to show a comparative detriment on the part of the claimant and if she was not interested in the positions she could not be said in the ordinary sense of the word to have suffered a detriment (paragraphs 20 and 21). In Berry v Recruitment Revolution

UKEAT/0190/10/LA

, paragraph 15 Underhill P endorsed his earlier approach in Keane. He concluded his judgment by noting that “the purposes of the Regulations is not to provide an income for persons who complain of arguably discriminatory advertisements for job vacancies which they have in fact no wish or intention to fill” (paragraph 29).” Submissions

[36]The claimant had prepared a detailed legal submission (a “skeleton argument”) running to 7 pages which set out what the key facts and law was from the claimant’s perspective. The Tribunal considered the submissions together with the applicable law and the facts as found. The Tribunal also considered the respondent’s submission. It is not necessary to repeat the submissions here and they are in the Tribunal’s case file. The Tribunal took time to consider both parties’ submissions. The issue in this case was narrow and amounted to whether or not the claimant genuinely wished to apply for the role. The Tribunal took time to consider the evidence that had been presented before it and reached a unanimous view. Discussion and decision

[37]The Tribunal was unanimous in its view having carefully considered the evidence in this case.

[38]The claimant had no genuine desire of applying for the role nor of in fact working in it. The sole purpose of the claim was to seek money from the respondent. The claimant was not credible in his evidence and from the surrounding circumstances the Tribunal was satisfied the claimant had no desire to apply for the role and the claim is accordingly unsuccessful.

[39]The Tribunal was satisfied the claimant’s motivation was solely for financial gain. The Tribunal found the claimant lacked credibility. He was evasive and we did not find him to be genuine. The Tribunal found from the evidence before the Tribunal that the claimant had no desire to fill the vacancy in question and as such the Tribunal finds that the claimant was not subjected to less favourable treatment.

[40]The Tribunal was satisfied the claimant had no intention of applying for this role and his only purpose in raising this claim was to seek money from the respondent. His claim is therefore ill founded and it is dismissed. The claim was accordingly dismissed.

Background

[1]This case has a long procedural history, having been raised in 28 July 2021. A hearing took place on 14 and 15 September 2022, with the claim being dismissed. An oral judgment was issued with written reasons being provided upon request. A preparation time order was granted against the claimant, with an oral judgment being given on 15 September 2022 and written reasons provided to the parties upon the claimant’s request.

[2]The judgment finally determining the proceedings was sent to the parties on 16 September 2022. Written reasons were provided and sent to the claimant on 19 October 2022.

[3]The claimant had sent an email to the Tribunal following the oral judgment that was issued which was considered to amount to an application to reconsider the judgment. An oral judgment was issued dealing with the reconsideration application, which was refused, and written reasons were provided on 20 September 2022.

[4]On 10 November 2022 the claimant sent an email to the Tribunal with attachments. One of those attachments includes an application for reconsideration of the judgment issued to the parties.

[5]I have undertaken a preliminary consideration of the claimant's application for reconsideration of the judgment dismissing his claim. The decision

[6]At the final hearing in this case having heard parties’ evidence and submissions the Employment Tribunal issued an oral judgment dismissing the claim. The Tribunal had found as a fact that the claimant had no genuine intention of applying for the role in question. The Tribunal concluded that the claimant did not wish to move to Scotland and had made no effort to consider such a move. He had seen the advert, which was discriminatory, and knowing the law, sought to secure money from the respondent via the Tribunal process.

[7]The claimant is an articulate, intelligent and capable individual. He has a masters degree (and certificate in accountancy) and works as a self employed interpreter and has worked in market research. He last worked in hospitality in 1990. He stays in Hounslow. He applied for no other jobs in Scotland (before or after the advert in question). He said he wished to move due to the cost of living being better in Scotland and the advert having referred to there being a beautiful park in Ruchill, and that it was a beautiful place.

[8]The claimant did not in fact apply for the role. He saw the advert and raised a claim for unlawful discrimination given its reference to “female takeaway staff needed” (albeit the advert later refers to “he/she”). The claimant did not contact the respondent prior to raising proceedings. He argued he was deterred from doing so because of the advert said “female takeaway staff needed” and he was male. He said he believed the advert was fake in any event. He said he did not want to enter into an argument with the respondent and so did not apply. He had presented research which he said evidenced these issues.

[9]The Tribunal found that the claimant had no intention of applying for the role. He had not worked in hospitality for many years. He had not applied for any other roles in Scotland. He was clearly capable of presenting his position and advancing his rights. His approach in setting out his claim in writing and orally demonstrated that. The Tribunal concluded that the claimant was in no way deterred from applying for the role whatsoever. The claimant chose not to apply as he did not wish to apply. His sole purpose in raising the claim was because he wished to secure money from the respondent having seen that the advert was unlawful.

[10]The Tribunal found that the claimant had carried out the research and reached a view in relation to the explanation for not applying following his decision not to apply for the role. The Tribunal did not accept that the fact the claimant believed the advert to be fake or the fact it had said “female takeaway staff” were to any extent a reason for his decision not to apply. The Tribunal did not accept a reason for his decision not to apply was the fact he did not wish to enter into an argument or discussion. The Tribunal found as a fact from the evidence presented that the claimant made a choice not to apply for the role, having been capable of doing so, if he wished to apply for it.

[11]The Tribunal took into account the full terms of the advert. The advert stated that the location was “near the beautiful area of Ruchill park”. In reaching its decision that the claimant had no genuine desire to move to Scotland the Tribunal took account of the fact that the claimant had made no effort to undertake any research as to the area whatsoever. He stayed in London and had made no effort to look for work in Scotland before or after. He had no connection with Scotland and little funds to allow him to move his life to Scotland. The Tribunal did take into account the difference in cost of living (which was better in Scotland) but found the claimant to be evasive and lacking in candour. The better cost of living was not a reason as a fact in this case for the claimant wishing to move to Scotland. He did not wish to do so.

[12]Had the claimant wished to apply for the role he was clearly capable of doing so and clearly capable of setting his position out. He did not do so because he had no intention of applying for the role.

[13]The Tribunal considered all the documents submitted by the claimant, including his witness statement, background material and submissions, in addition to his oral evidence. The Tribunal did not find the claimant to be credible or reliable. The Tribunal unanimously found that the only purpose of the claimant raising the claims was to seek money from the respondent, him having no genuine desire whatsoever to apply for the role. On that basis the claim was dismissed. The oral judgment that was issued made the Tribunal’s findings and reasons clear, including that it had expressly considered each of the claimant’s reasons and all his material. The specific grounds considered

[14]In his application the claimant provides 12 grounds in support of his application which are considered in turn.

[15]The first ground is that “it is not an automatic right to conduct a hearing outside the jurisdiction and a party can be allowed to do it only when it is located abroad and it has to give evidence. However, the respondent did not give any evidence during the hearing on the 14 and 15 September 2022 so it should not have been allowed to conduct it from China”.

[16]When there was a prospect of the respondent giving evidence from China, the Presidential Guidance on the taking of oral evidence from abroad was considered by the parties and the relevant consent was sought. The claimant had objected to any evidence being given from China.

[17]The respondent decided that no evidence would be led and the sole focus of the Hearing would be on whether the claimant had a genuine desire to apply for the role. This had been a matter canvassed at the earlier preliminary hearing and the parties had understood the position. As the respondent had chosen not to lead any evidence (and the case would be determined by whatever evidence the claimant led), the difficulties otherwise arising disappeared.

[18]The issues to be determined in this case were issues arising exclusively from the claimant’s evidence. It was the evidence led by the claimant which determined the issues. The matter would have been determined in the same way had the respondent not been in attendance remotely.

[19]As there was no evidence led from the respondent it was not necessary to have regard to the terms of the Presidential Guidance, which applies to leading evidence from a foreign country. The respondent viewed proceedings from abroad. There is no prohibition on so doing and the approach was entirely in the interests of justice and consistent with law and the overriding objective. There was no prejudice to the claimant whatsoever. The claimant was fully able to conduct his case and present the arguments he wished to advance in full.

[20]The second ground is that “We have to take into account that I am a witness like any other witness and that the evidence that I gave on oath during the hearing on the 14 and 15 September 2022 when I say that I was interested in the position has the same value as the evidence of any other witness. And, as a consequence the tribunal to have the right to accuse me of having lied on oath on this occasion needs to have conclusive objective evidence which prove with certainty that I lied on oath. However, the tribunal does not have such evidence.”

[21]The Tribunal assessed the evidence it heard in the normal way. The Tribunal was satisfied for the reasons set out in the judgment that the claimant had no genuine desire to apply for the role. That was a fact arrived at from an assessment of what the claimant said in evidence together with the contemporaneous and other evidence before it. That was the decision of the Tribunal on the evidence before it. The Tribunal, which was a panel of 3, carefully assessed the full evidence before it and reached a unanimous decision in relation to this point. The points raised by the claimant had been fully considered and there is no basis to suggest that decision has reasonable prospects of being revoked.

[22]The third ground is that it is alleged the Tribunal “unfairly has not taken into account that the Respondent did not comply with the UK law i.e. The Company, Limited Liability Partnership and Business (Names and Trading Disclosures) Regulations 2015 “because it did not state in its advert its real name as confirmed”. The Tribunal was aware of that argument, which had been raised by the claimant but it had no material bearing on the key issue in this case, namely, whether or not the claimant had a genuine desire to apply for the role. It was not a matter that required to be determined (or raised) by the Tribunal as it was not relevant to the issue to be determined.

[23]The fourth ground is that the Tribunal “says that he has considered my documentary evidence which proves that we can be deterred from applying to a position because of the discriminatory contents of an advert and that some people could be deterred but not me without putting forward any conclusive objective evidence which proves with certainty that I could not be deterred like anyone else”.

[24]This is an attempt to reargue the point that was fully considered at the Hearing. The claimant asserted that he was determined from applying and provided evidence. The Tribunal was satisfied that in fact the claimant was not deterred from applying and instead chose to do so. That was the unanimous decision of the Tribunal from its assessment of the evidence before it.

[25]The fifth ground is that “We have to take into account that one of the five grounds of appeal which are in the list of the possible grounds of appeal in the first page of EAT’s website is that the Employment Judge does not have evidence to support his decision”. It is alleged that there was no “objective conclusive evidence which proves with certainty” the claimant was not interested in this position or that he was not deterred from applying to it by the discriminatory contents of the advert.

[26]The Tribunal, as a panel, unanimously reached its decision from the evidence presented before it having carefully assessed what the claimant said and the documentary evidence. On the facts the Tribunal was satisfied the claimant had no desire to apply for the role for the reasons set out.

[27]The sixth ground is that “During this hearing, I gave evidence though a witness statement so I should have been cross-examined only concerning its contents as evidenced by paragraph 10.3 Guidance Note 5: timetabling of the Presidential Guidance 2018 “. As explained to the claimant at the Hearing, in Scotland evidence is given orally and written witness statements are only permitted where specifically ordered by the Tribunal. In this case there was no such order and evidence was to be given orally. Notwithstanding the absence of any such order the Tribunal noted it would take into account his witness statement and he was given the opportunity to present further points orally and ask questions the panel had. The questions asked of the claimant were relevant questions in light of the issues to be determined.

[28]The seventh ground is that “I was right to have refused to reply to any questions about my possible other claims because I have the right to protect myself against victimisation, persecution and breach of privacy.”

[29]The claimant criticises the question asked of him with regard to the other claims that the respondent had alleged, in writing, the claimant had raised in other claims. The respondent had produced a list of the other claims which appeared to involve a person in similar if not identical circumstances to the claimant raising the same claims. These were public documents.

[30]Such a question was relevant since it went to the key issue as to whether or not the claimant genuinely wished to apply for the role or whether there was another motive. The fact a litigant has raised other claims is not, by itself, material. In this case however the number of claims having been raised, which appear very similar if not identical to the claimant’s, was relevant given the issue that required to be determined. It was not a conclusive matter but it was relevant. There was no basis provided for the claimant’s assertion that disclosing that he was the claimant in the other claims would lead to some detriment or that his confidentiality was being breached by disclosing whether or not he was the person referred to in the other public judgments. It was open to him to raise such an issue, which would have been considered. The other claims had claimants who were in many respects identical to the claimant and are public judgments. The failure of the claimant to answer the direct question was a relevant consideration but it was not conclusive and the Tribunal did not apply any great weight to his failure to answer the question, reaching its decision from the other facts before it as set out in the judgment.

[31]The eighth ground is that “Judge Hoey was wrong to have appointed himself to conduct the fifth preliminary hearing on the 17 August 2022 and also the full merit hearing of the 14 and 15 September 2022”. It is alleged by the claimant that a judge who deals with preliminary matters in a case should not hear the substantive hearing because there is a risk of unfairness and this is “lacking in democracy”. There is no evidence given as to why such a risk arose in this case. It was entirely right and proper that the judge appointed to hear the case proceed to do so. There was no good reason why a judge who dealt with the preliminary matters could not proceed to fairly hear the claim, particularly given the claim was decided by a panel, with 2 independent members who had no prior knowledge of the claim or issues.

[32]The ninth ground is that the Tribunal had “not taken into account that I was subject to less favourable treatment because I was excluded from the recruitment process by the discriminatory contents of the advert”. The claimant argues that the advert was fake and that should have been taken into account. Whether or not the advert was fake had no bearing on whether or not the claimant had a genuine desire to apply for the role. It was not necessary to consider the nature of the advert given the issue that had to be determined.

[33]The tenth and eleventh grounds develop the argument that the advert was fake. Whether or not the advert was genuine had no bearing on whether the claimant genuinely wished to apply for the role.

[34]The final ground was that the Tribunal “should not have rejected my claim without having a copy of the correct advert so without knowing the extent of the discrimination”. This matter was dealt with at the outset of the Hearing where it was agreed that the Hearing would proceed on the basis of the advert produced by the claimant was the relevant advert. The respondent conceded that the discriminatory words were used. On that basis it was not necessary to consider what, if any, advert the respondent had. The respondent had advised the Tribunal that the nature of their social media account was such that they could not obtain a copy of the advert. Given agreement was reached as to the terms of the advert the claimant said he saw, that dealt with the issue. No reasonable prospects

[35]In terms of rule 72(1) an Employment Judge shall consider the reconsideration application and if it is decided that there are no reasonable prospects of the original decision being varied or revoked, the application shall be refused.

[36]The Tribunal took full account of the material provided by the claimant, including the issues he argues were overlooked. The Tribunal was unanimous in the view that the claimant had no genuine desire to apply for the role. He saw the unlawful advertisement and sought to use that as a way to seek money from the respondent. The Tribunal reached its unanimous decision from the evidence before it. The

Law

[37]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).

[38]Rule 72(1) of the 2013 Rules of 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.

Summary

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

[2016] EWCA Civ 714

in July 2016 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.”

[40]Similarly, in Liddington v 2Gether NHS Foundation Trust

EAT/0002/16

the Employment Appeal Tribunal chaired by Simler P said in paragraph 34 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.”

[41]In common with all powers under the 2013 Rules, 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. It is also important to recognise that fairness and justice applies to both parties – the claimant and the respondent.

Conclusion

[42]I considered the overriding objecting in reaching my decision to ensure the decision taken was fair and just. That applies to both the claimant and the respondent since justice requires to be achieved for both parties. I have done so carefully.

[43]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 raised were fully considered and addressed in reaching its unanimous decision. It is not in the interests of justice to reconsider the decision the Tribunal reached.

[44]The application for reconsideration is therefore refused under rule 72(1) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

Summary

[2]The judgment finally determining the proceedings was sent to the parties on 16 September 2022.

[3]A preparation time order was granted in the respondent’s favour. That judgment was sent to the parties on 21 September 2022.

[4]On 10 November 2022 the claimant sent an email to the Tribunal with attachments. One of those attachments contains an application for a preparation time order against the respondent. The application

[5]The claimant seeks a preparation time order against the respondent because “the respondent misconducted by failing to comply with the two Disclosure Orders: this of Judge MacLean dated 09 August 2022 and this of Judge Hoey dated the 29 August 2022”. The claimant states that he had to do additional work in August and September 2022 as a result of the failure of the respondent. The rules and their application

[6]In terms of rule 77 a person may apply for a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties.

Facts

[7]As the judgment finally determining the proceedings was sent to the parties on 16 September 2022, the claimant had until 17 October 2022 to make any such application. The application was not made until 10 November 2022 (almost 8 weeks after the judgment was issued).

[8]In terms of rule 5 the Tribunal is given discretion to extend or shorten any time limit. Such discretion should be exercised judicially and in accordance with the overriding objective, dealing with the matter justly and fairly.

[9]In this case the conduct to which the application relates is said to have occurred in August and September 2022. The claimant knew of the conduct and its consequences at the time given it was him who had to deal with the consequences of the conduct on which his application is based. The issue was raised, in passing, at the Hearing by the claimant and he noted the alleged failures of the respondent. No application for any order (or the suggestion that an order was being considered or sought was raised when this was raised by the claimant or when the issue of a preparation time order against the claimant was being discussed).

[10]The claimant is an articulate and intelligent person and is experienced in dealing with Employment Tribunal procedure. The rules relating to preparation time orders were discussed at the hearing.

[11]The Tribunal takes into account the additional time the claimant would require to deal with the issues arising, including his other applications. It is recognised that this claim is not the only matter the claimant is dealing with in his life. That has to be balanced with the desirability of finality of litigation looking at matters fairly and justly, being fair to both parties and the impact of the interests of justice generally.

[12]It is notable that the issue of the advert was dealt with at the hearing by reliance upon the advert the claimant had produced. The respondent had conceded that the terms of the advert relied upon by the claimant were the terms of the advert. The failure of the respondent to produce the advert therefore gave rise to no prejudice to the claimant given the fact the claimant had the terms of the advert upon which he relied.

[13]In all the circumstances it is not in the interest of justice to extend the time limit to allow the application to be considered. The claimant had sufficient time to raise the matter within the time set out in the Rules. It is not in the interests of justice to allow an extension to the time limit in all the circumstances of this case. Conclusion

[14]I considered the overriding objecting in reaching my decision to ensure the decision taken was fair and just. That applies to both the claimant and the respondent since justice requires to be achieved for both parties. I have done so carefully.

[15]Having considered the full factual matrix I have decided that it is not just to extend the time limit to allow the claimant’s application to proceed, it having been lodged late.

[16]The application for a preparation time order is therefore refused as it was not lodged within the time period set out in the rules and it is not just to extend the time limit in all the circumstances.

Background

[2]The claimant sought a preparation time order against the respondent by email dated 10 November 2022. In judgment dated 24 November 2022 the application was refused as out of time, there having been no reasons given why the application was made when it was in light of the time limit.

[3]By email dated 30 November 2022 the clamant has sought reconsideration of that decision.

[4]The judgment finally determining the proceedings was sent to the parties on 16 September 2022. The application

[6]In his reconsideration application the claimant notes that he had raised an application in an earlier communication. During the course of the Hearing the claimant had sent an email on 15 September 2022. That was the claimant’s response to the respondent’s application for a preparation time order. It also included (at the end of the document) an application for a preparation time order himself in respect of the respondent’s failure to send to him the advert when ordered to do so. The rules and their application

[7]In terms of rule 77 a person may apply for a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties.

[8]As the judgment finally determining the proceedings was sent to the parties on 16 September 2022, the claimant had until 17 October 2022 to make any such application. While the claimant renewed his application on 10 November 2022 (almost 8 weeks after the judgment was issued) the claimant had in fact made an application during the course of the hearing, which had not been raised by the claimant during the hearing. The law

[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).

[10]Rule 72(1) of the 2013 Rules of 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]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and another

[2016] EWCA Civ 714

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.”

[12]Similarly, in Liddington v 2Gether NHS Foundation Trust

EAT/0002/16

[13]In common with all powers under the 2013 Rules, 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. It is also important to recognise that fairness and justice applies to both parties – the claimant and the respondent.

[14]In all the circumstances it is in the interests of justice to revoke the judgment of 24 November 2022 and allow the application to be considered. The application was made in time. It was due to an oversight that the claimant’s application which was made in time, had not been identified. Conclusion

[15]I considered the overriding objecting in reaching my decision to ensure the decision taken was fair and just. That applies to both the claimant and the respondent since justice requires to be achieved for both parties. I have done so carefully.

[16]Having considered the full factual matrix I have decided that it is just to allow the claimant’s reconsideration application.

[17]The claimant’s application for a preparation time order against the respondent in respect of the alleged failure of the respondent to provide the advertisement as ordered is permitted to proceed. The respondent is given 14 days to respond to the application (or seek a hearing to consider the matter). If the respondent is content that the matter is determined on paper in chambers without a hearing the respondent should advise the Tribunal.

[18]Whether or not a claim has reasonable prospects of success is looked at from the claimant’s perspective at the time the claim is raised.

[19]The Tribunal firstly considered whether or not the jurisdiction to make the order had been engaged. The Tribunal was not satisfied any of the grounds that allow a preparation time order had been engaged.

[20]The orders relied upon by the claimant which support his application relate to the requirement upon the respondent to produce the advertisement upon which the claimant’s claim was based. The respondent’s position was that they did not have a copy of the advert. In any event it was accepted that the advert relied upon by the claimant, in the terms set out by the claimant, was the advert upon which the claim was based and upon which the hearing progressed. The claimant’s assertions as to the what the advert said were accepted by the respondent. The respondent did not retain a copy of the advert and were in any event unable to produce it.

[21]The Tribunal carefully considered the conduct of the respondent during the course of the proceedings, together with the orders issued and the approach taken. The Tribunal is satisfied that the respondent did not act unreasonably or in any way as to engage the terms of Rule 76. The respondent did not retain a copy of the advert that had been sought but the respondent did agree to the terms alleged by the claimant.

[22]Rule 76 states that an order can be made if(a) the party acted vexatiously, abusively or otherwise unreasonably in the bringing of the proceedings or in the way the proceedings were conducted or

(b) where the claim had no reasonable prospects of success. The Tribunal is satisfied that the respondent did not act in such a way so as to engage Rule 76 on the facts.

[23]Even if the Tribunal had been satisfied that the respondent’s conduct did engage Rule 76, it would not have been proportionate or just to have issued the order sought by the claimant. The respondent engaged with the claim the claimant raised. The respondent accepted the terms of the advert were those relied upon by the claimant and sought to assist the claimant and the Tribunal in progressing matters to allow the Hearing to be expedited. As the claimant had already set out the terms of the advert, the failure by the respondent to provide the actual advert did not prejudice the claimant.

[24]The issues in this case were sharply focused given the respondent’s acceptance of the wording relied upon by the claimant. The issue was whether or not the claimant had a genuine desire to apply for the role. That was the position arrived at in light of the concessions made by the respondent in this case (to the claimant’s benefit). If the claimant established that he genuinely wished to apply for the role, the claim would have been successful. He had not done so.

[25]The jurisdiction pertaining to the making of a preparation time order was not engaged in this regard. The respondent’s actions in their conduct of the case and in their failure to comply with the orders issued was not unreasonable.

[26]Further it would not have been appropriate to make a preparation time order even if the respondent had acted unreasonable. The Tribunal considered the full facts in reaching its conclusion. The Tribunal was satisfied that the respondent’s actions were not so unreasonable as to make it just to issue the order sought. The respondent did not retain a copy of the advertisement and their concession as to its terms resulted in no prejudice whatsoever to the claimant. The respondent’s conduct in no way detrimentally affected the claimant with regard to this claim or his pursuit of it. The respondent’s action in conceding what the advertisement said allowed the claimant to focus instead on the key issue in this claim, whether or not he had a genuine desire to apply for the role. That ensured the claim was focused and the key issue could be determined without further delay.

[27]The claimant’s application for a preparation time order against the respondent is therefore refused.

Background

[2]The claimant sought reconsideration of the judgment which application was considered in detail and refused on 10 November 2022. The Tribunal carefully considered all the evidence presented by the claimant and reached a decision, unanimously, based upon the full evidence, both oral and written.

[3]On 9 December 2022 the claimant sought reconsideration of the decision not to reconsider the judgment.

[4]I have undertaken a preliminary consideration of the claimant's application for reconsideration of the judgment dismissing his claim. The decision

[5]At the final hearing in this case having heard parties’ evidence and submissions the Employment Tribunal issued an oral judgment dismissing the claim. The Tribunal had found as a fact that the claimant had no genuine intention of applying for the role in question. The Tribunal concluded that the claimant did not wish to move to Scotland and had made no effort to consider such a move. He had seen the advert (the terms of which were agreed), which was discriminatory, and knowing the law, sought to secure money from the respondent via the Tribunal process.

[6]The claimant is an articulate, intelligent and capable individual. He has a masters degree (and certificate in accountancy) and works as a self employed interpreter and has worked in market research. He last worked in hospitality in 1990. He stays in Hounslow. He applied for no other jobs in Scotland (before or after the advert in question). He said he wished to move due to the cost of living being better in Scotland and the advert having referred to there being a beautiful park in Ruchill, and that it was a beautiful place.

[7]The claimant did not in fact apply for the role. He saw the advert and raised a claim for unlawful discrimination given its reference to “female takeaway staff needed” (albeit the advert later refers to “he/she”). The claimant did not contact the respondent prior to raising proceedings. He argued he was deterred from doing so because of the advert said “female takeaway staff needed” and he was male. He said he believed the advert was fake in any event. He said he did not want to enter into an argument with the respondent and so did not apply. He had presented research which he said evidenced these issues.

[8]The Tribunal found that the claimant had no intention of applying for the role. He had not worked in hospitality for many years. He had not applied for any other roles in Scotland. He was clearly capable of presenting his position and advancing his rights. His approach in setting out his claim in writing and orally demonstrated that. The Tribunal concluded that the claimant was in no way deterred from applying for the role whatsoever. The claimant chose not to apply as he did not wish to apply. His sole purpose in raising the claim was because he wished to secure money from the respondent having seen that the advert was unlawful.

[9]The Tribunal found that the claimant had carried out the research and reached a view in relation to the explanation for not applying following his decision not to apply for the role. The Tribunal did not accept that the fact the claimant believed the advert to be fake or the fact it had said “female takeaway staff” were to any extent a reason for his decision not to apply. The Tribunal did not accept a reason for his decision not to apply was the fact he did not wish to enter into an argument or discussion. The Tribunal found as a fact from the evidence presented that the claimant made a choice not to apply for the role, having been capable of doing so, if he wished to apply for it.

[10]The Tribunal took into account the full terms of the advert. The advert stated that the location was “near the beautiful area of Ruchill park”. In reaching its decision that the claimant had no genuine desire to move to Scotland the Tribunal took account of the fact that the claimant had made no effort to undertake any research as to the area whatsoever. He stayed in London and had made no effort to look for work in Scotland before or after. He had no connection with Scotland and little funds to allow him to move his life to Scotland. The Tribunal did take into account the difference in cost of living (which was better in Scotland) but found the claimant to be evasive and lacking in candour. The better cost of living was not a reason as a fact in this case for the claimant wishing to move to Scotland. He did not wish to do so.

[11]Had the claimant wished to apply for the role he was clearly capable of doing so and clearly capable of setting his position out. He did not do so because he had no intention of applying for the role.

[12]The Tribunal considered all the documents submitted by the claimant, including his witness statement, background material and submissions, in addition to his oral evidence. The information provided by the claimant in this second reconsideration application does not in any way change or influence the decision that was reached. The Tribunal did not find the claimant to be credible or reliable.

[13]The Tribunal unanimously found that the only purpose of the claimant raising the claims was to seek money from the respondent, him having no genuine desire whatsoever to apply for the role. On that basis the claim was dismissed. The oral judgment that was issued made the Tribunal’s findings and reasons clear, including that it had expressly considered each of the claimant’s reasons and all his material. The specific grounds considered

[14]In his application the claimant provides 3 grounds in support of his application which are considered in turn. First ground

[15]In his application the claimant argues that he was unable to contact the respondent because he did not have the correct details of the respondent, either via the advert or via companies house as he argued the correct company details had not been set out.

[16]The claimant, however, presented no evidence of any attempt to contact the respondent. In any event the Tribunal was not satisfied from the evidence it heard that the claimant genuinely wished to apply for the role. He presented no evidence to show that he was interested in doing the job which was advertised or that he made any effort to contact the respondent to undertake the role. His sole focus was in relation to the discriminatory terms of the advert but was not in respect of a position in which the claimant had any genuine interest. That was the Tribunal’s decision on the facts that the claimant presented to the Tribunal.

[17]There is no basis to reconsider that decision from the information the claimant presented in his reconsideration application. Second ground

[18]The claimant argues that the advert “could have been fake”. The claimant provides information that suggests a rise in fake adverts and that he was therefore right to be suspicious of the respondent and its advert. The Tribunal took account of this but did not consider it material or relevant. From the evidence presented the claimant had no genuine desire to apply for the role. The fact the advert may have been believed by the claimant to have been fake did not alter the position. Third ground

[19]The claimant finally argues that it was wrong to proceed with the hearing without requiring evidence of the actual advert. The claimant argues that the respondent ought to have been able to provide a copy of the advert. At the case management preliminary hearing the respondent conceded that the terms of the advert relied upon by the claimant were correct. In other words the respondent accepted the terms of the advert as set out by the claimant were accurate (and that the terms were discriminatory). The only issue was therefore whether or not the claimant had a genuine desire to apply for the role. The background to the advert or the respondent’s position in relation to the advert was not relevant given the parties had agreed what the advert said, which was the advert to which the claimant replied. No reasonable prospects

[20]In terms of rule 72(1) an Employment Judge shall consider the reconsideration application and if it is decided that there are no reasonable prospects of the original decision being varied or revoked, the application shall be refused.

[21]The Tribunal took full account of the material provided by the claimant, including the issues he argues were overlooked. The Tribunal was unanimous in the view that the claimant had no genuine desire to apply for the role. He saw the unlawful advertisement and sought to use that as a way to seek money from the respondent. The Tribunal reached its unanimous decision from the evidence before it. None of the factors relied upon by the claimant in this second reconsideration application alters the position which was arrived at following the Tribunal’s full and fair consideration of the claimant and the evidence presented at the hearing. The law

[22]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).

[23]Rule 72(1) of the 2013 Rules of 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.

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

[2016] EWCA Civ 714

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.”

[25]Similarly, in Liddington v 2Gether NHS Foundation Trust

EAT/0002/16

[26]In common with all powers under the 2013 Rules, 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. It is also important to recognise that fairness and justice applies to both parties – the claimant and the respondent. Conclusion

[27]I considered the overriding objecting in reaching my decision to ensure the decision taken was fair and just. That applies to both the claimant and the respondent since justice requires to be achieved for both parties. I have done so carefully.

[28]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 nor of the original refusal to reconsider the decision being varied or revoked. The points raised were fully considered and addressed in reaching its unanimous decision. It is not in the interests of justice to reconsider the decision the Tribunal reached.

[29]The application for reconsideration is therefore refused under rule 72(1) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

[1]This case has a long procedural history, having been raised in 28 July 2021. A hearing took place on 14 and 15 September 2022, with the claim being dismissed. An oral judgment was issued with written reasons being provided upon request. A preparation time order was issued against the claimant, his conduct during the claim found to have been vexatious and unreasonable and there being no reasonable prospects of success.

[2]The claimant sought a preparation time order against the respondent. That application was refused, the facts not supporting the application in light of the rules. That was a decision of the full Tribunal. The claimant applied for reconsideration of that decision, which was refused, there being no reasonable prospects of success to argue that the decision not to make the award should be reviewed. Preliminary consideration

[3]By email dated 17 March 2023 the claimant sought further reconsideration of the refusal to make a preparation time order in the claimant’s favour. On 20 March 2023 that application was refused there being no reasonable basis for reconsideration of that decision, it not being in the interests of justice to do so.

[4]The claimant by email dated 4 April 2023 has made a further reconsideration application of the refusal to reconsider that decision.

[5]I have undertaken a preliminary consideration of the claimant's application for reconsideration of the judgment.

[6]The claimant relies upon it being in the interests of justice to reconsider the decision not to make a preparation time order in his favour. There are a number of grounds relied upon by him in support of this further application each of which is considered in turn. Matter considered by full panel and not Judge alone

[7]The claimant alleges that “Judge Hoey lied to me because he caused me to believe that the hearing "in Chambers" of the 01 March 2023 about my application for a Preparation Time Order will be conducted by a judge alone but in reality it was conducted by a panel of three members”.

[8]The claimant noted that in the Notice of hearing of 23 February 2023 it was stated: “Parties are not required to attend the hearing in any capacity as the hearing will be conducted by an Employment Judge in chambers”

[9]The claimant notes that in fact the decision was made by the full panel that heard his original claim. He argues that “Hence, the truth was concealed from me and I was misled by this Notice of Hearing which says that this hearing will be conducted "in Chambers" by an Employment judge alone”.

[10]Having reviewed matters and the case file, the administrative notice that was issued to both parties stated that the hearing would be conducted by a judge alone. The judgment that was issued correctly notes that the decision that was taken was made by the panel that heard the claimant’s claim.

[11]In terms of rules 75 to 79 it is for “the Tribunal” to determine the claimant’s application. It was in the interests of justice for the panel who heard the claimant’s claim to hear and determine his application which it did.

[12]There was an administrative error in the notice of hearing. That error indicated the judge alone would make the decision but the error caused the claimant no prejudice since the decision reached was unanimous and was determined by the panel that heard the claimant’s claim – the Employment Judge and both non legal members. That ensured that the claimant’s application was fully and fairly considered and all the points the claimant raised were examined.

[13]The administrative error was entirely inadvertent and did not adversely affect the claimant. The error in no way had any impact upon the decision that was made. There is no basis for varying the original decision because of this error, which caused the claimant no prejudice whatsoever. Application considered in chambers

[14]Next the claimant argues that: “Judge Hoey lied to me also because he caused me to believe that my application for a Preparation Time Order will be heard "in Chambers"; however, "in Chamber" means that the public is not allowed to attend but the parties are allowed to attend. Hence, in reality this application was considered “on papers” and not "in Chambers"”

[15]Following upon the claimant’s application having been made, the parties were asked how the application was to be considered given they had provided extensive written submissions. The parties were content for the matter to be determined in chambers. There is no suggestion from the claimant that he has further information that he wished taken into account. All the information the claimant presented was taken into account (and no further information has been provided to suggest the claimant wished other matters to be taken into account).

[16]While the claimant may not agree with the decision that was reached, all the information he provided was fully taken into account in full and no further information has been provided to suggest the decision was wrong or should be varied. There is no prospect of varying the decision given the matter was determined on the information both parties presented and there being no further information from the claimant he wished taken into account. Preparation Time Order application considered by the Tribunal

[17]Next, the claimant argues that “this application for a Preparation Time Order was considered "on papers” not by a judge only as usual but by a panel of three members which is not legal”.

[18]The decision was made in accordance with rule 76 which states that the “Tribunal” shall consider the application. It was in the interests of justice for the full panel that heard the claimant’s claim (the Tribunal) to consider his application. The decision reached was unanimous and full reasons were given for the decision. The claimant has not provided any information to suggest the decision that was made was in any way wrong or should be varied. The procedure that was followed complies with the terms of rule 76. There is no basis to reconsider the decision. Consideration of application in chambers

[19]Next the claimant alleges that “it is illegal that a panel of three members meets secretly to consider an application without the parties being allowed to attend”.

[20]The parties had agreed that their written submissions should be provided and considered in chambers as there was no further information to take into account. The claimant and respondent were given the opportunity to present all the information they wished considered and for the matter to be determined. That occurred. That approach is consistent with the rules. Rule 77 states that no order should be made until the parties have had a reasonable opportunity to make representations (in writing or at a hearing as ordered by the Tribunal). In this case the parties were given a choice. The parties were content for the matter to be dealt with in chambers. In any event there is no right to a hearing. In this case it was in the interests of justice for the matter to be determined in chambers. All the information the parties wished to be considered was provided in writing (and nothing has been raised to suggest anything was omitted). Each of the points the claimant raised was fully considered. It is not in the interests of justice to review the decision as there is no basis to review the decision that was made, which took full account of all the points the parties wished to be considered in accordance with the rules and interests of justice. Part of the overriding objective is to ensure due consideration is given to cost, which includes cost to the public purse. The overriding objective was secured by the process adopted in this case. Suggestion of bias on part of Employment Judge

[21]The claimant then alleges: “Hence, Judge Hoey has lied to me which is evidence of bias against me. Therefore, I would like that his decision of the 20 March 2023 to reject my application of the 17 March 2023 for the reconsideration of the judgement sent to the parties on the 03 March 2023 refusing my application for a Preparation Time Order of £287 is reconsidered because it is in the interest of justice because it has been taken by a judge who is biased against me i.e. Judge Hoey”.

[22]This is a serious allegation that is not properly the subject of a reconsideration application but is a matter the claimant should raise as an appeal, if so advised.

[23]It is relevant to note that the decision about which the claimant complains was taken by a full panel (and not the Employment Judge alone). The full panel included the 2 non legal members of the Tribunal and considered all the information the claimant presented and reached a decision on the facts applying the law. The information presented was fully considered and a decision reached applying the law.

[24]The claimant argues that “The fact that judge Hoey is biased against me has perverted all these proceedings since Judge Hoey has started to deal with them. Therefore, I would like that all the others decisions taken by Judge Hoey are also reviewed i.e. his decision to impose on me a Preparation time order of £697 and his decision to reject my claim.”

[25]The claimant had previously raised this ground in an attempt to have the decision made reconsidered. It was refused there being no reasonable basis to conclude that the fact of being an allocated judge creates a perception of bias. The judge allocated to this case determined the case applying the law to the facts. It is common for judges to be allocated cases given part of the overriding objective to ensure cases progress expeditiously. The fact a judge was allocated to this case is not, by itself, evidence of bias. The decision reached was a unanimous decision of the panel and considered all the evidence and applied the law to reach a decision. There is no basis for reviewing the decision in this case.

[26]The claimant concludes by asserting: “I would like that all these decisions from judge Hoey are reviewed by a panel of three members but with another judge that Judge Hoey and that the parties this time are allowed to attend this hearing.” There is no information to support the serious allegation the claimant makes in this application. The panel determined each of the claimant’s claims in a fair and reasonable way consistent with the facts and law.

[27]The claimant has the right to appeal against the decision in the event he believes there is an error of law. There is no basis to reconsider any of the decisions reached for the foregoing reasons. The decisions were made on the basis of the information before the panel having applied the law. No reasonable prospects

[28]In terms of rule 72(1) an Employment Judge shall consider the reconsideration application and if it is decided that there are no reasonable prospects of the original decision being varied or revoked, the application shall be refused.

[29]The Tribunal took full account of the material provided by the claimant, including the issues he raises in this further reconsideration application. The Tribunal was unanimous in the view that the respondent’s conduct was not such as to engage the terms of rule 76. The Tribunal was satisfied that the respondent had not acted vexatiously, abusively or otherwise unreasonably in its actions and the claimant’s submissions in that regard were not upheld. The Tribunal unanimously concluded from all the evidence before it that the grounds set out in rule 76 were not engaged and that it was not reasonable just and proportionate to issue the order sought by the claimant, having taken account of all the evidence in this case. None of the factors relied upon by the claimant in this further reconsideration application alters the position which was arrived at following the Tribunal’s full and fair consideration of the all the evidence and submissions provided by the claimant. The claimant has provided no material in this further application that supports the assertion that it was not just to refuse the original application.

[30]The administrative error in the notice of hearing was an administrative error and caused no prejudice to the claimant whatsoever. The decision was taken by a full panel which considered all the information the claimant provided. There is no further information the claimant now provides to support his argument that the decision should be reviewed. The panel fully considered the facts and applied the law in reaching its decision. The law

[31]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).

[32]Rule 72(1) of the 2013 Rules of 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.

Legal principles

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

[2016] EWCA Civ 714

in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not openended; 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.”

[34]Similarly, in Liddington v 2Gether NHS Foundation Trust

EAT/0002/16

the Employment Appeal Tribunal chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to relitigate 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.”

[35]In common with all powers under the 2013 Rules, 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 and taking account of cost (both to each party and to the public purse). Achieving finality in litigation is part of a fair and just adjudication. It is also important to recognise that fairness and justice applies to both parties – the claimant and the respondent.

[36]This further application amounts to an attempt to reopen the argument to seek to change a decision with which the claimant disagrees. The Tribunal reached a unanimous decision from the facts presented by both parties (with no further facts having been provided) applying the law. The claimant has raised no factors that support the argument the original decision should be reviewed. Conclusion

The law

[37]I considered the overriding objecting in reaching my decision to ensure the decision taken was fair and just. That applies to both the claimant and the respondent since justice requires to be achieved for both parties. I have done so carefully.

[38]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 nor of the refusal to reconsider the decision being varied or revoked. The points raised were fully considered and addressed by the panel in reaching its unanimous decision. It is not in the interests of justice to reconsider the decision the Tribunal reached. The decision not to make the order was consistent with the evidence and authorities and was just.

[39]There is no basis to find that the Tribunal’s unanimous decision to refuse the claimant’s application was wrong or should be reviewed.

[40]The application for reconsideration is therefore refused under rule 72(1) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

[41]The claimant is reminded of the rules with regard to an appeal to which he should have regard if he believes there to be an error of law in the Tribunal’s decision.