Mr R Urquhart Pettigrew v Universal Student Living Ltd: 4112056/2021

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4112056/2021

Between

Mr R Urquhart PettigrewClaimant

Universal Student Living LtdRespondent

Before

Employment Judge Russell Bradley

Ms K Graydon (instructed by Solicitor) for respondent

M for respondent

Date 18 January 2023

JUDGMENT

[1]The claim of discrimination on grounds of age is dismissed under Rule 52 of the Employment Tribunals Rules of Procedure 2013 its withdrawal having been confirmed at this hearing;

[2]The claim of discrimination on grounds of race is dismissed under Rule 52 its withdrawal having been confirmed at this hearing;

[3]Insofar as the claimant has sought to add Homes for Students Ltd as a respondent, that application is refused;

[4]The claim of discrimination under section 20 of the Equality Act 2010 should proceed against the respondent to a case management preliminary hearing to be held by CVP on a date to be fixed;

[5]There is no relevant claim of unfair dismissal under either section 98 of the Employment Rights Act 1996 or under section 103A of that Act;

[6]The claim or a failure to consult the claimant about an alleged transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) made against the respondent should proceed to the case management preliminary hearing anticipated at 4 above:

[7]Insofar as the claimant makes a claim of detriment under section 47B of the Employment Rights Act 1996 against the respondent on the ground that he made disclosures to it that(i) the coronavirus regulations were not being complied and

(ii) the student premises were non-compliant with building regulations, that claim should proceed to the anticipated case management in preliminary hearing.

REASONS

1 . On 26 April 2022 an emailed Notice to the parties fixed this CVP preliminary hearing. It followed an Order by EJ Kearns at a telephone conference preliminary hearing on 25 April. The Notice confirmed her order that this hearing was fixed to determine two issues. First, the claimant’s application to amend the ET1. Second, to review case management. The parties were represented as noted above. Ms Stephanie Wessel was in attendance with Ms Graydon. it was unfortunate that the claimant was not represented as had been anticipated by EJ Kearns in paragraph 2 of her Note. It appears that special arrangements were made to accommodate that representation.

[2]For this hearing an indexed paginated bundle of 86 pages was lodged. Both parties lodged written submissions Following my request, Ms Graydon emailed to the tribunal a copy of an agenda previously lodged by the claimant which had not been included in the bundle. It appears that it was emailed to the tribunal on 13 December and to Ms Graydon on 24 December 2021.

[3]On 28 October 2021 the claimant presented his ET1. He named two respondents. They were (first) Universal Student Living Ltd and (second) Homes for Students Ltd (H4S). On 5 November 2021 the tribunal wrote to the claimant. The letter said "a Legal Officer ... has decided that part of your - t» - tgards to the second respondent should be rejected under rule 12 because you have not complied with the requirement to contact Acas before instituting relevant proceedings ” It said that his claim was defective because he had “not provided an early conciliation number for each respondent . . . and your claim is rejected insofar as it is made against the following respondents: Homes for Students LTD,” The letter returned the claim form. The letter also advised that the claimant could apply to the Tribunal for the decision to be considered afresh by an Employment Judge within 14 days. It further advised of his right to apply for a reconsideration of the decision under Rule 13 of the

[10]Employment Tribunals Rules of Procedure 2013 and of a right of appeal. The claimant did none of these three things. On 7 December an ET3 was submitted by the respondent. 4. It was agreed that the claimant had been employed as a Building Manager. The ET 1 form 5. The claimant indicated at8.1 of his form that he made claims of unfair dismissal and of discrimination on grounds of

(i) age

(ii) race and

(iii) disability. At

8.2 of the form and relative to the claim of unfair dismissal the claimant said that; it was clear that H4S “wanted rid of' him from day 1 (that day being 29 July 2021): he was accused of threatening behaviour/insubordination; his suspension and accusations were made while he was suffering from mental health issues; the disciplinary process was not conducted fairly and an investigation report was flawed and inaccurate; and notes at a meeting were not a true record. While there was reference to racist and discriminatory “tactics” affecting others, there was nothing relevant supporting a claim by the claimant of discrimination on grounds age, race or disability. The background at 8.2 contained references to failures to adhere to COVID-19 guidance, and faults and non-compliance at the claimant’s place of work 194-200 Cowgate, Edinburgh. It also referred to a grievance raised by the claimant. It narrated that the respondent was acquired by H4S on 29 July [2021]: he was made aware of it that day: and there had been no prior consultation. At that time of presenting his ET1 the claimant was not represented. Preliminary Hearing on 13 January 2022 6. On 1 3 January 2022 EJ Porter conducted a telephone conference preliminary hearing (pages 35 to 41). The parties were represented as they were before me. I understand that agendas were lodged by both parties prior to it. The respondent’s agenda was indexed in this bundle as dated 7 January 2022 (pages 29 to 34). While neither agenda is referred to in the Note, it is clear from the email forwarded by Ms Graydon at my request that she received an email with the claimant’s agenda on 24 December. The tribunal ordered further and better particulars. They were to contain details of; the basis of the claim of unfair dismissal against the respondent; the claims of direct and indirect discrimination (age); the basis of the claim of race discrimination: the basis of claims of direct and indirect discrimination (disability); and whether claims under sections 15 and/or 20/21 were made and if so particulars of them. The tribunal noted that the claimant’s narrative could be construed as bringing a claim of public interest disclosure, it later recorded the claim as being one of detriment and ordered further and better particulars about it. Disability was not conceded by the respondent. The claimant was ordered to intimate an impact statement and al! relevant medical records A further preliminary hearing was fixed for 1 March. The tribunal noted the claimant's undertaking to seek legal advice from the Citizens’ Advice Bureau or a law clinic affiliated to a university it appears that the claimant first approached the University of Strathclyde law clinic for assistance on 21 January. 28 February Orders and the 1 March Preliminary hearing 7. On 28 February 2022 and on reading a letter of that date from the claimant’s general medical practitioner EJ d’lnverno made the following orders (see page 50);- 1 . Postponed the PH fixed for 1 March 2022 2. Directed that it be relisted on the first available day after 6 weeks 3. (On his own initiative) extended the time for compliance by the claimant with the Orders of 14 January 2022 to 21 March 2022 4. Allowed the Respondent until 11 April 2022. within which to (a) write to confirm which points if any of the Further Particula . objected to on the grounds that they require to be the subject of an application for (eave to amend, and (b) adjust the paper apart to Form ET3 in response, if so advised. 8. The GP letter was not in the bundle. Neither side could recall its content. It was agreed that I would source a copy from the tribunal file and share it, which I did later in the afternoon of this hearing. r 9. It is obvious from EJ d’lnvemo’s orders that by 28 February the claimant had not complied with the orders from the hearing on 13 January. Further pleadings 10. On 21 March an 11 page document was submitted for the claimant (pages 52 to 62). It is headed, “ET1 section 8 paper apart.” It contains 74 paragraphs. It is set out under a number of headings. They are; “Preliminary Matters”, IC “Parties”; ‘Background’; ‘The Claims” and “Remedies” 1 shall refer to it from hereon as “the F&BPs” I understand that the F&BPs were prepared by Strathclyde University law clinic. The claims were particularised at paragraph 54 as being:- 1. Failure to make reasonable adjustments (Section 20 of the Equality Act 2010). 2. Victimisation as a result of raising protected disclosures (Section 27 of the Equality Act 2010). 3. Breach of TUPE Regulations 2006 for a failure to inform and consult regarding a transfer of employment 4. Unfair dismissal under s 94-98 of the Employment Rights Act 1996 (should Homes for Students be added to the claim). 1 1 . Paragraph 55 said “The law and facts are set out below as applicable to each of the above claims:"

[12]On 11 April the respondent submitted its response (pages 63 to 67). It set out that the claimant’s paper apart was entirely new" and was interpreted by the respondent as an application to amend " Under various headings it set out its basis of opposition to the claimant’s application for leave to amend. Preliminary Hearing: 25 April 2022

[13]The case was next considered by EJ Kearns at the telephone conference preliminary hearing on 25 April noted at paragraph 1 above. She ordered this hearing and specified the issues for it. At paragraph 1 of her note, EJ Kearns recorded that "although the claims have become better focused by the further Li and better particulars he lodged recently, the precise nature of the claims requires additional information in order to understand them properly." Accordingly, she ordered the exchange of a table or Scott Schedule requesting and providing the information currently missing from the claimant s further and better particulars which (information) was required in order to understand the claims being advanced. The Schedule containing the questions and the claimant’s answers to them are pages 75 to 86, lodged on 30 May.

[14]The completed Scott Schedule provided information on; disability; the claim of a failure to make reasonable adjustments; the alleged protected M disclosures; the alleged detriments; the failure to consult under TUPE; and the claim of unfair dismissal. At this hearing the claimant confirmed that his unfair dismissal claim was made against H4S only.

The issues

[15]The issues were fixed by the Notice of Hearing. First, the claimant’s L5 application to amend the ET1. Second, to review case management. After discussion, it was agreed that the second could only properly be determined after a decision on the first. Discussions prior to evidence

[16]In discussions prior to hearing evidence, I noted that: - 1 . Ms Graydon would email a copy of the claimants agenda as reference to it was made at paragraph 65 of the F&BPs; 2. Tne claims of discrimination on grounds of age and race were withdrawn and could be dismissed. I have done so; 3. Case management should follow at a separate preliminary hearing after and in light of a decision on amendment; 4. Disability remained disputed; 5. While the victimisation claim was labelled as such under section 27 of the 201 0 Act, it was properly a claim of detriment under section 47B of the Employment Rights Act 1996 for allegedly making protected disclosures; 6. The claimant makes a claim of (automatic) unfair dismissal under section 103A of the 1996 Act Evidence

[17]The claimant gave evidence and was cross examined. Findings in Fact

[18]From the tribunal paperwork and the claimant’s evidence, I found the following facts admitted or proved as relevant to the first issue.

[19]The claimant is Roy Urquhart Pettigrew. His employment with the respondent began on or about 10 or 1 1 December 2018. He was employed as a building manager. On 29 July 2021 his employment transferred to H4S. He was suspended on or about 24 August. He was dismissed from their employment on 24 September 2021 He was signed off from work with medical certificates from his GP in the latter part of 2021 . That situation continued until a last certificate at that time on 10 January 2022. Early conciliation with the respondent began on 1 1 October. A certificate was issued on 13 October. The ET 1 form was presented on 28 October. 41 12056/2021 Page 3

[20]The claimant worked at 194-200 Cowgate Edinburgh. It is principally used as student accommodation. In the claimant’s opinion it was a “non-complianf building since about 2018- In his opinion a previous conversion or the building in or about 2012 was "very bad’. He complained to a number of individuals about various faults there. Those complaints included the unsuitability of fire extinguishers, a faulty ventilation system and a large hole in a roof/floor. There were, in his view, “lots of other issues’ at the building. He also complained about a failure to follow COVID-19 related legislation. His complaints were made before and after 29 July 2021 to a number of individuals. On or about 21 August 2021 , he raised a grievance to do with his concerns about safety of the building and COVID-19 compliance. 21 . His written case is now contained within; his ET 1 form; his agenda; the F&BPs; his Scott Schedule; and his written submission. He completed the form and the agenda himself. The other material was prepared by the law clinic. They were prepared based on information which he had provided to them The claimant met with the law clinic on or about 21 January 2022. On or about 3 February a Statement of Facts was prepared by the clinic for the claimant which he approved shortly thereafter. The claimant could not recall if or if so when he gave the law clinic his ET1 , the Note from the PH in January 2022 or the letter of 5 November 2021 from the tribunal.

[22]The Scott Schedule alleged that; various adjustments should have been implemented in the period January to June 2019 relative to his disability; protected disclosures were made in June 2019 and August 2021 and on other unknown dates; the alleged detriments occurred in June 2019 and August 2021 and on other unknown dates. The Schedule alleged that there was a TUPE transfer on 29 or 30 July 2021 between the respondent and H4S and that there was a failure to inform or consult about it. The Schedule set out the basis of the claim of unfair dismissal against H4S only.

[23]In relation to the various adjustments where there were alleged failures, the claimant just “took them on the chin.” He expected things to get better, but they were never fulfilled.

[24]The claimant suffers from anxiety. He did so when he submitted his ET1 . He has been assessed by the Benefits Agency as being unfit for work in the longer• .erm. The claimant had a telephone appointment with his GP on 24 February 2022. The GP then wrote a "to whom it may concern letter on 28 February. As 5 at 28 February 2022 he was assessed as unfit for work due to depressive and anxiety symptoms. The GP’s letter recorded; the claimant’s commentary of a recent deterioration in his health, particularly mental health, his mood and levels of generalised anxiety; the claimant’s opinion that he would not manage to represent himself at the upcoming hearing; and his understanding that the claimant was seeking to postpone the hearing until he felt mentally stronger and more able to prepare for it. It recorded the GP’s opinion that in light of the claimant's current mental state the request to postpone was reasonable. It also recorded that after review, it was necessary to commence antidepressant medication. I ’ Submissions

[25]Both parties lodged written submissions in advance. Ms Graydon agreed that the respondent’s submission should be heard first. In very large measure she repeated her written submission. I mean no disservice by not repeating it. She agreed that broadly it replicated her written response, at pages 65 to 67 of the bundle. Under the headings of Delay, New Factual Allegations, New Head of Claim, Time Bar and Prejudice she detailed her argument as per those pages. Her written submission added a heading and detail of Jurisdiction - Respondent not alleged perpetrator. Her argument was that to the extent that the claimant seeks to introduce Homes for Students Ltd as a respondent in various claims, that should not be allowed.

[26]The law clinic had prepared the claimant’s written submission to which he made a short oral addition. Again I mean no disservice by not repeating it. He underlined that; he did not have legal representation at the time of his ET 1 ; his illness (anxiety) was exacerbated by the tribunal process: his amendment did not introduce anything new; and in relation to TUPE enough was said in his ET 1 at Box 8.2 (about the acquisition and absence of consultation) for this not to be regarded as a new claim. j |s

The law

[27]The decision of the EAT in Selkent Bus Co Ltd v Moore

[1996] ICR 836

(cited by both parties) contains genera! guidance to employment tribunals in relation to amendments (recognised as such in the Court of Appeal in AH v. Office of National Statistics

[2005] IRLR 201

1 I refer to that guidance below.

[28]Rule 34 of the Employment Tribunals Rules of Procedure 2013 provides that ‘The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings: and may remove any party apparently wrongly included.”

[29]In Argyll & Clyde Health Board v Mr A Foulds & Others

UKEATS/0009/06/RN

the Scottish EAT (Lady Smith) considered the question of amendment by bringing in (in that case) a third respondent about four months after presentation of the ET1. At paragraph 40, Lady Smith said, ‘‘If it was being presented outwith that time limit the tribunal need to look at the explanation given for that having occurred: Why were the respondents not included in the original claim? What was known by the claimant and/or his solicitor about their potential as relevant respondents at that time? What should have been known? When did the claimant and/or his solicitor realise that the respondents ought to be included? What steps were taken after that? What was the reason for any delay thereafter? Did the claimant and/or his solicitor take prompt action once the need to seek to include the respondents was realised or not? If not, why not? Would there be injustice or hardship to the claimant if the application were refused? If so, of what nature? What would be its cause? Would there be injustice or hardship to the respondents in being brought in as respondents at this stage?"

[30]The claimant’s written submission referred to a number of decisions of upper courts. Discussion and decision In his written submission, the claimant says, The purpose of this preliminary hearing is to determine if the ET1 paper apart submitted on 21 March 2022 is an amendment to the original claims and if so whether the amendment should be allowed.' With respect, that is not quite accurate. EJ Kearns and the Notice of Hearing had determined that the F&BPs were an application to amend. There was no prior question.

[32]On the application to amend, it is convenient to set out the guidance from the EAT in Selkent. 10 1. Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant,(a) The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on 20 the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action,

(b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory, e.g., in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978.

(c) The timing and manner of the application. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1 993 for the making of amendments. The amendments may be made at any time — before- at, even after the hearing of the case. Delay in making the application is, however a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are >0 unlikely to be recovered by the successful party, are relevant in reaching a decision.

[33]It is perhaps helpful to start by acknowledging what claims were and were not within the ET1 form. Claims of discrimination

[34]The form is marked to show claims of discrimination on grounds of age, race and disability. By agreement now, the age and race discrimination claims have been withdrawn and are dismissed. While its details are unfocussed and contain some material which is strictly not relevant, the ET1 says, “I was accused of threatening behaviour/insubordination. This was done as they were aware I was suffering from mental health issues.” On any reading that is an assertion of a claim of discrimination connected to a condition which could be a disability. In his agenda which appears to have been sent to the tribunal and to the respondent on 24 December, he asserted claims under sections 15 and 20 of the 2010 Act. Schedule 2 with the agenda (D6 to D8) contains the claimant s answers to questions relevant to a claim under section 20. The F&BPs are clear that such a claim is asserted (see page 59, paragraph 54.1 and paragraphs 56 to 63). The Scott Schedule information further specifies four conditions relied on as a disability in respect of each alleged failure to make reasonable adjustments. The Schedule then identifies the months (January, March and June 2019) when it is said that the adjustments should have been made, in my view the further detail provided in the F&BPs and the Schedule is not (as per Selkent) pleading a new cause of action. It is the part ia n of the claim which was anticipated by EJ Porter on 13 January. Her Note (at paragraph 9) expected the F&BPs to address the question of whether there is a claim under sections 20 and 21 and if so poses three questions to be answered. The claimant has now done so. The 5 respondent's agenda anticipated that without specification of the claims there may be a time bar argument. Given the dates now relied on by the claimant there may well be. That may be a preliminary issue which will require to be addressed. But to summarise, the F&BPs do not seek to amend in a new claim under section 20. That claim (only) should proceed against the 10 respondent. Ciaims of unfair dismissal

[35]The ET1 form is also marked to include a claim of unfair dismissal. The claimant has now clarified that this claim is made against only H4S. His F&BPs anticipate that it can go on only if they are “added to the claim”. In my view, two points occur. First, the claimant has done nothing to retain them as a party after the letter of 5 November. It set out three steps available to him. He took none. No explanation has been offered as to why the claimant did nothing in answer to it. Further, EJ Porter s Note records (paragraph 2) that the claims against H4S were rejected at the stage of eariy conciliation. The Z'O claimant did nothing to address this issue even after 13 January, Second, and while not referred to by either party Rule 34 appears to me to be relevant. But so are the views expressed in Foulds. Notwithstanding the involvement of the law clinic since about mid-February 2022, there is no answer to any of the questions posed by Lady Smith in that case. The attempt to add H4S in the F&BPs is clearly outwith the time limit. While they were included in the original ET1 , by about 5 November the claimant knew that any ciaim against them was not proceeding without further action by him and within certain time limits. He knew what he needed to do and the timescale within which it needed to be done. No steps were taken to add them until 21 March, in the circumstances that was not prompt action. The obvious hardship to the claimant is the loss of a claim of unfair dismissal. There appears to be no prejudice to the respondent in that this claim is exclusively against an unconnected third party. But in my e he hardship to the claimant has come about as a result of his own inaction. The claim if deemed presented on 21 March is dearly out of time. And while the claimant’s written submission to the question of reasonable practicability and 12 cases which are said to be relevant to that question in my view the question is; was it reasonably practicable for the claimant to have taken one or more of the three steps available to him on receipt of the letter of 5 November? In my view it was reasonably practicable for him to have done so. He was aware that the claim against H4S had been rejected on receipt of the letter of 5 November. There was no explanation from him as to why none of the suggested steps were to taken. The application to amend the claim by adding H4S is therefore refused. Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE)

[36]In the ET 1 the claimant says, “Homes for students acquired Universal Student Living in [sic] the 29 th July. No prior consultation. I was made aware of take over by Robyn Burns HAS on 29th of July.” In his agenda (at 4.1) in answer to the question “What are the issues that you consider the tribunal will have to determine?” the claimant includes, “Failure to consult notify prior to acquisition of USL by HFS.” In her written submission. Ms Graydon says (under the heading of New Head of Claim) “The Claimant’s application introduces an entirely new head of claim which is raised out of time: an alleged breach of the TUPE Regulations 2006 fora failure to inform and consult.” I do not agree that the F&BPs seeks to introduce a claim which is entirely new. The ET1 refers to an acquisition and a takeover. He refers to being made aware of it on 29 July, in its Grounds of Resistance the respondent says (at Bl) (page 25) “On 29 July 2021, the Second Respondent acquired the First Respondent by way of on an acquisition. As a result, the Claimant's employment automatically transferred to the Second Respondent." In his ET 1 the claimant complains about “no prior consultation” . It is clear from the context of that narrative that he is referring to the acquisition of the respondent 3(: by H4S. I note that while the F&BPs say (paragraph 55 on page 59) that “The law and facts are set out below as applicable to each of the above claims there are no pleadings to support a claim for a failure to consult. I have taken account of what was said by Langstaff J (the then President of the EAT- as he then was) in the case of Chandhok and another v Tirkey (20151 ICR. 527 at paragraphs 16 to 18 1 . “ ...... The claim, as set out in the ET 1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely on their say so. instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made— meaning, under the Employment Tribunals Rules of Procedure 2013 (SI 2013/1237), the claim as set out in the ET1. [17] I readily accept that tribunals should provide straightforward, accessible and readily understandable fora in which disputes can be resolved speedily, effectively and with a minimum of complication. They were not at the outset designed to be populated by lawyers, and the fact that law now features so prominently before employment tribunals does not mean that those origins should be dismissed as of little value. 22i Care must be taken to avoid such undue formalism as prevents a tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET 1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits, if a "claim” or a “case” is to be understood as being far wider than that which is set out in the ET 1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had al! along been made, because it was “their case ’ and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendments; it allows issues to be based on shifting sands: it ultimately denies that which clear-headed justice most needs, which is focus It is an enemy of identifying, and in the light of the identification resolving, the central issues in dispute. [18] In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems !0 to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it: so that they can tell if a tribunal may have lost jurisdiction on time grounds: so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure ;5 which goes hand in hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an employment tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings ”

[37]In my view, in his ET1 the claimant was saying that there had been a failure to consult about what he understood to be the acquisition (or takeover) of his employer by H4S. It appears to me that his F&BPs do little more than identify that the claim about that alleged failure arises by virtue of TUPE. Given what was apparently known to the respondent when it drafted its ET3, it knew (or should have known) “in essence" what was being complained about in the ET1, In my view the claimant does not seek to introduce a new claim in his F&BPs. The essence of the claim (in fact) was pled in the ET 1 itself. The claim of a failure to consult should proceed against the respondent As an aside, I noted that in answer to my question Ms Graydon initially appeared to accept that TUPE applied to the acquisition. After an intervention from Ms Wessel contradicting her, it appears that the respondent now disputes that TUPE applied to the admitted acquisition. If TUPE did not apply it is obvious that this claim cannot succeed Detriment for making alleged protected disclosures

[38]In her note, EJ Porter said that in her view “a claim of Public Interest Disclosure could be construed as being brought from the ET1 narrative. She later recorded the claim being one of detriment and ordered further and better particulars about it (see paragraph 10 of the Note, page 39). At paragraph 10 EJ Porter said, ... the claimant claims detriment on the grounds that he made Public Interest Disclosures. To this end, the claimant states that he intimated 1 > to the respondents that the coronavirus regulations were not being complied with. He also intimated to the respondents that the student premises were non-compliant with building regulations, it is unclear what detriment he suffered as a consequence of the alleged disclosures. Further and Better Particulars of these claims are required. The Further and Better Particulars should, as a minimum" include a number of essential matters.

[39]The F&BPs (page 61, para 65) say “The Claimant believes he was treated negatively for raising protected disclosures regarding compliance with Coronavirus legislation and health and safety issues. These issues are outlined in the Claimant’s PH agenda.” The relevant reference in the agenda appears to me to be (at 2.2), “Victimised due to constant raising of concerns regarding client and directors failure to adhere to Landlord registration building regulations/health and safety/fire safety. A failure to adhere to the Coronavirus(Scotland)(no2)Act 2020 and the dismissal of my emails\advice regarding this. ’ The Scott Schedule avers five disclosures (pages 80 and 81). Claims arising from the latter two (on 21 and 23 August 2021) cannot proceed because, logically, they were not disclosures made to the respondent. Indeed the Scott Schedule says they were made to an employee of H4S. Any claim of detriment allegedly based on those disclosures cannot proceed. The first alleged disclosure (June 2019) relates to an alleged undertaking to provide a laptop. There is no disclosure as such allegedly made by the claimant. This is beyond what is noted by EJ Porter as being his case when she considered it in January. It is, in my view, an attempt to 41 12056/2021 Page 18 introduce a new claim based on a disclosure concerning a different matter. The ciaimant has not provided any explanation as to why it was not included cr even referred to at ail in his ET1 . Looked at in the context of Selkent my view is that this is an attempt via the F&BPs to introduce a new factual basis of a claim. It is on the face of it out of time No explanation has been offered as to why it was not included earlier, it is a proposed amendment which I refuse.

[40]The second alleged disclosure made to a director of the respondent (also June 201 9) related to gas safety, suitability of fire extinguishers and ventilation W system. It appears to me that it could be a complaint that the premises were non-compliant with building regulations. The claim against the respondent of alleged detriment based on that disclosure should proceed. I note that the date of the disclosure (and apparently of the alleged detriment) is June 2019. It is, on the face of it, out of time. 41 . In relation to the one other alleged disclosure (and detriment) (failure to follow Coronavirus legislation in particular the Coronavirus (Scotland) (No.2) Act 2020) the claimant says (pages 81 and 82) that the exact dates are unknown as the claimant raised these concerns on numerous occasions to many different people. He lists seven individuals. One at least was the director of the respondent. In my view what is said in the F&BPs and the Scott Schedule is not the introduction of a new claim. It is further specification of a claim within the ET1 against the respondent which was recognised at the January PH. At paragraph 66 (page 61) of the F&BPs the claimant avers, “The Claimant on numerous occasions brought to the Respondents attention issues with the property which amounted to breach of health and safety regulations. Further, the client made the Respondent aware of the duty of student accommodation providers under the Coronavirus (No.2) (Scotland) Act 2020, when he was told that this did not apply to the company as they were an English company:' This averment does not add anything material to what was recognised in January. I note in passing that in answer to the Scott Schedule question for detail of each detriment alleged the claimant says (page 82) “The Claimant felt he was victimised and treated negatively as a result of him flagging up concerns relating to Coronavirus legislation. He felt the respondent wasn t listening and wouldn t tak actio n ot ; s ues despite the apparent safety concerns. The Claimant further felt his reputation and character and he felt he was pressured into keeping quiet and not voicing his concerns. ' While not strictly not a matter for this hearing, it appears to me that the relevance of that passage as a claim for detriment is questionable. Summary

[42]The following claims will proceed against the respondent: 1 . discrimination under section 20 of the Equality Act 2010 2. a failure to consult the claimant about an alleged transfer TUPE 3. detriment under section 47B of the Employment Rights Act 1996 limited as per the judgment above

[43]I direct that a case management preliminary hearing is fixed to take place by CVP in order to determine further procedure for those claims. One hour 1 ■ should suffice. It would be helpful if the claimant’s representative could attend that hearing.

The Issues

[44]The submission concludes by inviting the Tribunal to “find inference from the above points that the claimant satisfies [present tense - the Tribunal’s emphasis] “the criteria of disability under the 2010 Act due to the substantial, long term adverse effect that the impairment has on the claimant's ability to carry out day to day activities.”

[45]The written submission prepared by the Law Clinic did not extend to the 20 issue of TUPE.

[46]The claimant however read from notes prepared for him by the Law Clinic. Under reference to the case of Jackson Lloyds Limited and Mears Group Pic v Smith and another [2014]-

UKEAT/0127/13/LA

, and to the factors which the EAT found had been established in fact in that case, the claimant invited the Tribunal to hold that a “coextensive but separate TUPE transfer* in respect of which the respondent had failed to consult, had occurred following and notwithstanding the acquisition, by sale purchase, of Universal Student Living Ltd by Homes for Students Ltd which took place on the 29 th of July 2021 .

[47]In the course of his submission the claimant asserted that following the share sale acquisition he had signed a new Contract of Employment with the acquiring company Homes for Students Ltd, implying although not expressly stating, that the identity of his employer had changed. This was the first occasion, on which the claimant had made such an assertion or had given notice of such a position. No such document was produced in the course of Hearing nor was one contained in the Joint Bundle. The claimant himself gave no oral evidence about that matter in the course of the Hearing. The claimant, in his submission, provided no specification of when or of the circumstances in which the alleged new Contract was signed by him, other than that it occurred at some time “after the acquisition date”. Summary of Submissions for the Respondent

[48]Under reference to the oral and documentary evidence produced, the respondent’s representative invited the Tribunal to hold that the claimant had not established, on the balance of probabilities, that he had suffered from a physical or mental impairment which, at the material time for the purposes of his complaint, that is January - June 2019, which had had a substantial and long term adverse effect on his ability to carry out normal day to day activities.

[49]He submitted that the evidence presented was wholly insufficient to support a Finding in Fact that at the material time the claimant was a person possessing the protected characteristic of Disability in terms of section 6 of the Equality Act 2010. He submitted that the claimant had failed to discharge the burden of proof of establishing disability status, at the material time for the purposes of his complaints, and that accordingly the Tribunal lacked jurisdiction to consider the claim of Discrimination in terms of sections 20 and 21 of the Equality Act 2010 said to arise by reason of failure in a duty to make adjustments allegedly arising in terms of section 20 of the Act.

[50]Under reference to the extracts from the Share Purchase Agreement and the Companies House Notice of Relevant Legal Entity and Confirmation Statement produced at pages 147 to 154 of the Bundle, the respondent’s representative invited the Tribunal to find in fact that the acquisition had proceeded by way of Share Purchase Agreement, a mechanism which had not engendered any change in the identity of the claimant’s employer and, that the identity of the claimant’s employer not having changed, no “relevant transfer” had occurred for the purposes of Regulation 3(1 )(a) of the TUPE Regulations 2006. That, he submitted, was the correct conclusion in law for the Tribunal to reach on the evidence presented and on the relevant Findings in Fact which, based upon that evidence, he invited the Tribunal to make. That being so it would be for the claimant to prove, and for the purposes of today’s Hearing to give notice in his pleaded case of an offer to prove, facts which, if proved, could displace that conclusion.

[51]Under reference to the evidence presented and to the Notice of the claim set out at paragraph 7 of the section 8 paper apart to the claimant’s ET1 (rehearsed in full at paragraph 28 above), he submitted that the claimant had not done so and did not do so. He invited the Tribunal to hold that the averments relied upon by the claimant, which encapsulated the totality of the claim of which he purported to give notice, did not give notice of a relevant and competent complaint of failure to consult on the occurrence of a “relevant transfer” in terms of paragraph 3(1 )(a) of the TUPE Regulations 2006. The Tribunal accordingly lacking jurisdiction to consider the complaint of which notice was actually given at paragraph 7 of the part 8 paper apart to the ET 1 , that complaint fell to be dismissed. Discussion and Disposal The Protected Characteristic of Disability

[52]In the case of Goodwin v Patent Office ICR 302, the EAT set out, at page 308, guidance on the approach to be adopted by Tribunals to determining disputed possession of the protected characteristic of Disability, indicating that it will be helpful for the Tribunal to consider each of the following four questions:-• Did the claimant, at the material time for the purposes of his claim, have an impairment which is either physical or mental?

• Did the impairment, at the material time for the purposes of his claim, affect the claimant’s ability to carry out normal day to day activities

• Was the adverse effect on the claimant’s ability to carry out normal day to day activities substantial, at the material time for the purposes of his claim; and,

• Was the adverse effect long term.

[53]Each of the four questions must be answered in the affirmative as a condition of possession of the protected characteristic.

[54]The question of status requires to be ascertained at the “material time’ 5 , that is to say at the time of the alleged discriminatory acts or omissions, in the instant case, in the period 1 st January to 30 th June 2019.

[55]The physical and mental impairments (medical conditions) on which the claimant, in his pleaded case, gives notice of relying for the purposes of giving rise to his possession of the protected characteristic of Disability, at the material time for the purposes of his claim (that is in the period 1 st January to 30th June 2019 are, variously (that is individually or collectively):-• “Anaphylaxis Shock”,

• “Musculoskeletal Issues”

• “Anxiety and Depression”

[56]It is against the above, given notice of and relied upon impairments, individually or collectively, albeit by focusing consideration on the effects of an impairment rather than on its cause, that the Preliminary Issue of Disability Status before the Tribunal must be determined.

[57]The onus of proof sits with the claimant to establish, on the preponderance of the evidence presented at Hearing and on the balance of probabilities, that each of the four stages of the “Goodwin test” are met in respect of the case given notice of at the material time for the purposes of his complaint. On the evidence presented and on the Findings in Fact made, including in particular Findings in Fact at paragraphs 10 to 26, the Tribunal considered that the claimant had failed to discharge that burden of proof.

[58]The evidence presented and relied upon did not support a Finding that the claimant, at the material time for the purposes of his complaints; had any of the physical or mental impairments on which he gives notice of relying), that individually or collectively any such impairments had the adverse effects on the claimant’s ability to carry out normal day to day activities such as he gives notice of in his Disability Impact Statement, nor that any such effect would have fallen to be regarded, at the material time as long term. On the contrary such medical evidence as was presented tended to support a finding that the above was not the case at the material time namely January - June 2019.

[59]Whatever may be said about the state of the claimant’s health as at the date of Hearing of as at the times variously 6 months to an excess of 3 years after the material time at which his subsequent medical records indicate some deterioration, some complained of symptoms and or prescription of medication, in order to hold that it has jurisdiction to consider a complaint of Discrimination, the Tribunal must be satisfied that a claimant was a person possessing the protected characteristic at the material time, that is to say at the time of the alleged discrimination.

[60]The evidence presented fell far short of that which would be required to justify a finding of state of fact as described and invited in the conclusion of the claimant’s submission, including, in particular, that at the material time for the purposes of his complaint namely January - June 2019 the claimant was a disabled person for the purposes of section 6 of the 2010 Act. On the contrary such evidence as was presented tended to show that such a state of fact did not exist at the material time.

[61]On the evidence presented the Tribunal is not satisfied, on the balance of probabilities, that the claimant was a person possessing the protected characteristic of Disability for the purposes of section 6 of the Equality Act 2010 at the material time for the purposes of his claims. The claimant accordingly lacks Title to Present and the Tribunal lacks Jurisdiction to Consider his complaint of section 20/section 21 EqA 2010 Discrimination which complaint accordingly falls to be dismissed. Discussion - “Relevant Transfer under the TUPE Regulations 2006

[62]A “Relevant Transfer” for the purposes of the TUPE Regulations 2006 is described in Regulation 3(1 )(a) as follows: “3 A Relevant Transfer (1) These Regulations apply to (a) A transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity”

[63]It is generally accepted that the TUPE Regulations will not apply to a transfer of shares. This is because there is no change in identity of the employer following a share sale. All rights, duties and liabilities in connection with the employees' Contracts of Employment remain with their employer after the share purchase.

[64]Notwithstanding, the process of acquisition by transfer of shares will not necessarily preclude all possibility of an internal “TUPE transfer” occurring in circumstances where integration of the two businesses follows a share purchase. The occurrence of the first is not fundamentally incompatible with the occurrence of the second. The case of Jackson Lloyds Ltd and Mears Group Pic, to which the claimant made reference in submission, is authority for that proposition. Whether a subsequent internal transfer has occurred, however, will depend upon the facts of each case and, in general terms, no TUPE transfer will take place unless the third party:• Has become responsible for the carrying on of the business;

• Has incurred the obligations of employer; and or « Has taken over the day to day running of the business.

[65]The key question therefore, on the facts of each individual case, is whether the third party has “stepped into the shoes of the employer”.

[66]For the purposes of today’s Hearing it is sufficient to consider whether in terms of the written notice given in his pleadings, the claimant offers to prove facts which, if proved, would support a conclusion that what is set out at paragraphs 62 and 63 above had occurred.

[67]Jackson Lloyds Limited and Mears Group Pic v Smith and others

UKEAT/0127/13/LA

, was a case in which the EAT dismissed an appeal against a decision of the Employment Tribunal, at first instance, which was to the effect that notwithstanding the occurrence of an acquisition which had progressed by way of sale purchase, there had occurred, after the purchase of shares, an internal coextensive but separate “TUPE transfer” between the entities. The claimant submitted that that was the case which he also advanced against the respondents.

[68]As was made clear by the EAT in Jackson Lloyds Limited and in the English Court of Appeal case of Millam v Print Factory (London) 1991

[2007] EWCA Civ 322

, to which the EAT in Jackson Lloyds Ltd referred, in order to establish such a coextensive TUPE transfer where acquisition has proceeded by way of share purchase, a party requires to prove, (and for the purposes of today’s Hearing to give sufficiently specific notice of an intention to prove), that control of the business in question, in terms of its day to day business activities, has in fact passed to the other entity, in this case to Homes for Students Ltd. The averments at paragraph 7 of the claimant’s proposed amended ET1 give no notice of an intention to prove such a state of fact. There is nothing in those averments which, if proved, would go to disturb the generally accepted conclusion in law that no TUPE transfer occurs where an acquisition proceeds by way of share purchase. That that was the mechanism by which the acquisition in the instant case proceeded is a matter of fact which the Tribunal has found established on the unchallenged documentary evidence presented. As a matter of record no oral or documentary evidence was led before the Tribunal that went to contradict that position.

[69]In the course of his submissions, the claimant, for the first time,• o asserted that he had signed a new Contract of Employment with the alleged transferee Homes for Students Ltd. No notice of an offer to prove such an occurrence exists in his pleaded case, no such document was produced in the Joint Bundle or separately by the claimant. The claimant himself made no mention of such an occurrence in the course of giving his evidence.

[70]There was no evidence of the claimant having signed a new Contract of Employment with the alleged transferee before the Tribunal at the Hearing, and no evidential weight falls to be attached to the claimant’s bald assertion, made by him for the first time in the course of his submission, that he did so.

[71]Although the claimant prayed in aid the case of Jackson Lloyds Limited and Mears Group Pic v Smith and another in the course of his submissions, and made reference to the factors which, in that case had been considered by the EAT to be present and relevant factors indicating the occurrence of a relevant transfer, the case given notice of by the claimant contains no offer to prove the existence of any such factors in relation to the instant acquisition. Nor was any evidence of the occurrence of/the existence of any such factor placed before the Tribunal.

[72]The respondent’s representative who had had no prior notice of the suggestion that the claimant had signed a new Contract of Employment with the alleged transferee, was obliged in the circumstances and let it be assumed that the Tribunal were to accord any weight to the evidentially supported assertion, to reserve the respondent’s position in that regard. He subsequently wrote to the Tribunal, having taken - instructions on a contingent basis, stating that the respondent’s position was one of denying that any such Contract had been signed with the respondent and reiterating that the claimant’s most recent Employment Contract was one dated 28 th November 2018 and remains with Universal Student Living Ltd, the alleged transferor. The claimant for his part also wrote to the Tribunal following the conclusion of the Hearing reiterating the assertion made by him in the course of his submissions and proposing to bring forward to the Tribunal further unspecified evidence. Both parties were advised that the Tribunal would not consider further submissions or evidence, in respect of the Preliminary Issues to be determined, which was tendered by parties following the conclusion of the Hearing but rather, would determine the issues on the evidence, presented and submissions made, at the Hearing.

[73]In the circumstances where the Tribunal has found established in fact that the acquisition proceeded by way of share purchase, the Tribunal finds that the claimant’s averments, introduced by amendment and appearing at paragraph 7 of the section 8 paper apart to his proposed amended ET 1, fail to give notice of a relevant, sufficiently specific and competent complaint of failure to consult on the occurrence of a “relevant transfer” in terms of paragraph 3(1 )(a) of the TUPE Regulations 2006; and that the apparent complaint of failure of duty to consult on a TUPE transfer falls to be dismissed. IO

The Issues

[1]By email dated the 24th of January 2023 the claimant made Application, in terms of Rule 71 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, for reconsideration of the Judgment of the Tribunal dated 18th and issued to parties on 20th January 2023, following the Open Preliminary Hearing heard in the case on 10th January 2023.

[2]The Application, was made timeously in terms of Rule 71 insofar as it relates to the Tribunal’s Judgment of 18th/20th January 23. It attached 8 pages of photographic partial extracts from documents to which reference is made in the Application, and is in the following terms:- “From: Roy Urquhart Pettigrew Sent: 24 January 2023 10:55 To: EDINBURGHET; Graydon, Kirsty; Andrew.Glass@clydeco.com Cc: Law Clinic Subject: Case Number 4112056/2021 R U Pettigrew v Universal Student Living ltd. Attachments: 20230124_093337.jpg; 20230124_093354.jpg; 20230124_093409.jpg; 20230124_093421.jpg; 20230124_093434.jpg; 20230124_093638.jpg; 20230124_093644.jpg; 20230124_093713.jpg Dear Sir/Madam. Application for reconsideration of the Judgement of Judge d'Inverno.CVP Hearing 10/1/2023. Dear Sir/Madam. I refer to the above request and would ask that this Judgement be reconsidered. I have listed the reasons for my request and enclose new evidence which is in the interests of Justice. The respondent's main thread of defence has been that I never was employed by Homes for Students and my employer was Universal Student living ltd. This is untrue and I will list the new evidence.

The Issues

[1]HMRC form P800(HMRC08/21). Page 2 of this form shows my income and whom this income has originated from. This clearly shows that my employer did change and shows both Universal Student Living ltd and then changed to Homes for Students ltd.

[2]I also attach details of my transfer to Scottish Widows. This clearly shows that I was transferred to the Homes for Students ltd pension Scheme. My previous pension provider was NEST whilst employed by Universal Student Living ltd.

[3]I also attach a copy of the final disciplinary hearing letter .I have bracketted the relevant sections which are "during the 30 minutes of discussion that followed, you continued to bring up several matters, many of which relate to your employment under Universal Student living. This bore no relevance to the allegations held against you. Further discussions yielded no clarity on what basis you felt the decision to dismiss you were fit for appeal." "It is on that basis that I support the decision to terminate your employment with Homes for Students. The final paragraph states the blacklisting of my email addresses/server and attempts to obtain further evidence via a Subject Access request were denied. The final attachment is the new Homes for Students phone simcard letter. The provision of false information/statements throughout this process has seriously affected my mental health and in my opinion has been done with malicious intent. My reputation has been rubbished and the publication of previous Judgement has caused extreme mental anguish. I considered giving up due to the distress caused by this process and my marriage is now on the brink of collapse as a result of my depressive state . The provision of false information at my initial hearing by the respondent has resulted in valuable Tribunal time being wasted and the costs associated with providing false information. In view of this I would be grateful if the Tribunal could take this new information into account . I have had to take 2 oaths, provide 2 sets of medical records and endure a Tribunal process which has been biased due to the false allegations contained in the Respondents defence and during my disciplinary procedure. It should be noted that a fully completed ET3 has never been provided to myself and had a fully completed ET3 been completed in full and truthfully then this matter could have been resolved at an earlier date. Judge Pirters instruction that a fully completed ET3 be provided to me and the respondent's failure to provide this suggests impropriety. At my initial hearing I requested that for the purposes of the tribunal that both parties be treated as one. I gave my reasons on 3 occasions but was advised by both Judges to seek legal advice on the definition of a legal entity. In view of the new evidence and in the interests of Justice I would request a reconsideration of all previous judgements made. I thank you for your consideration. Yours sincerely Roy Urquhart Pettigrew Sent from Outlook for Android” 3. As is set out at paragraph 2 of the Note of Reasons attached to the Judgment and reproduced below for ease of reference, the Open Preliminary Hearing was fixed for the consideration of two distinct Preliminary Issues, viz;- “The Issues 2. The Open Preliminary Hearing was fixed for the consideration and determination of the following two Preliminary Issues:(a) Whether, at the material time for the purposes of his complaints, that is in the period 1st January 2019 to 30th June 2019, the claimant was a person possessing the protected characteristic of Disability for the purposes of section 6 of the Equality Act 2010, by reason of all or some of the physical and mental impairments (medical conditions) of which he gives notice of relying in his pleaded case, and in the “Scott Schedule” at pages 82 to 85 of the Joint Bundle, those being; “Anaphylaxis Shock, Musculoskeletal Issues, Anxiety and Depression”;

(b) Whether in, section 8 paragraph 7 of his ET1 at page 31 of the Joint Bundle (“the Bundle”), the claimant gives notice of a relevant and competent complaint of failure to consult in respect of a Regulation 3(1)(a) of the TUPE Regulations 2006 “Relevant Transfer” and, if he does not, whether the “TUPE Complaint” which is given notice of at section 8, page 7 of his ET1 should be struck out as enjoying no reasonable prospect of success which failing should be made the subject of a Deposit Order.”

[4]The claimant’s Application for Reconsideration although making reference in its heading to the “Judgment of Judge d’Inverno.CVP Hearing 10/1/2023” relates in its terms solely to the second Preliminary Issue, that is the one set out at 2(b) above – read short whether, in section 8 paragraph 7 of his ET1 the claimant gives notice of a relevant and competent complaint of failure to consult in respect of a Regulation 3(1)(a) TUPE Regulations 2006 relevant transfer, and if not, whether that complaint, as given notice of in section 8 page 7 of the ET1, should be struck out as enjoying no reasonable prospect of success.

[5]The Application for Reconsideration relates solely to paragraph (Third) of the Tribunal’s Judgment which is in the following terms:- “(Third) That the “TUPE Complaint” which is given notice of by the claimant at section 8, page 7 of his ET1, is a complaint which enjoys no reasonable prospect of success and is struck out in terms of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 Rule 37(1)(a).” Applicable Law, Reconsideration in Overview

[6]The Tribunal’s current powers to reconsider its Judgments are set out in Rule 70 which is in the following terms:- “70 Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any Judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”

[7]The present Rule 70 evolved out of old Rule 34 of the 2004 Employment Tribunal Rules of Procedure. Some brief consideration of the old Rule is appropriate because the Higher Courts have from time to time confirmed that some of the jurisprudential guidance given in respect of the old Rule 34 continues to apply to the new Rule 70. There have also, from time to time and in the context of the emergence of the “Overriding Objective”, stated that some of the emphasis placed on the previous requirement for exceptional circumstances was less applicable. The Position under the old Rules

[8]Under old Rule 34 of the 2004 Employment Tribunal Rules, there were 5 grounds upon which a Tribunal could review a Judgment (not including a default Judgment). These were:• That the decision was wrongly made as a result of an administrative error - old Rule 34(3)(a)

• That a party did not receive notice of the proceedings leading to the decision – old Rule 34(3)(b)

• That the decision was made in the absence of a party – old Rule 34(3)(c)

• That new evidence had become available since the conclusion of the Tribunal Hearing to which the decision related, the existence of which could not have been reasonably known of or foreseen at the time – old Rule 34(3)(d) and/or

• That the interests of justice required a review – old Rule 34(3)(e)

[9]Under the 2013 Rule (Rule 70), only one of these grounds is carried forward namely, that a reconsideration is necessary in the interests of justice. That sole ground however falls to be regarded as broad enough to embrace the other 4 specific grounds previously expressed under old Rule 34. In seeking to apply Rule 70 ground – is reconsideration necessary in the interests of justice - the Tribunal must consider the interests of both parties and the underlying public policy principle that in all proceedings of a judicial nature there should be finality in litigation.

[10]Reconsiderations are thus best seen as limited exceptions to the general rule that Employment Tribunal decisions should not be reopened and relitigated. It is not to be viewed as a method by which, nor is the Tribunal’s power to be exercised for the purposes of affording to, a disappointed party to proceedings, a second bite of the cherry. In Stevenson v Golden Wonder Limited

[1977] IRLR 474

, EAT, Lord Macdonald said of the old review provisions that they were ‘not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before.’ Interests of Justice

[11]Under Rule 70 of the 2013 Employment Tribunal Rules, a Judgment will only be reconsidered where it is “necessary in the interests of justice to do so”. This ground gives an Employment Tribunal a wide discretion but the case law suggests, that it will be carefully applied. ‘It does not mean that in every case where a litigant is unsuccessful he or she is automatically entitled to a reconsideration: “virtually every unsuccessful litigant thinks that the interests of justice require the decided outcome to be reconsidered. The ground only applies where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order” – Fforde v Black EAT 68/80. Exceptional Circumstances Required?

[12]More recent case law suggests that the “interests of justice” ground should not be construed as restrictively as it was prior to the introduction of the ‘Overriding Objective’ which is now set out in Rule 2 of the 2013 Rules. The same requires an Employment Tribunal to seek to give effect to the Overriding Objective (to deal with cases fairly and justly) whenever it exercises a power conferred by the Rules or is required to interpret its provisions. That however does not result in any rule of law that the interests of justice ground do not have to be construed restrictively. The Overriding Objective to deal with cases justly requires the application of recognised principles. Those principles include finality of litigation which is in the interests of both parties and in the public interest. The Interests of Justice require to be considered from both sides

[13]It is clear that the interests of justice as a ground for reconsideration relate to the interests of justice to both sides. In Reading v EMI Leisure Limited EAT 262/81 the claimant appealed against an Employment Tribunal’s rejection of her application for a review of its Judgment. She argued that it was in the interests of justice to do so because she had not understood the case against her and had failed to do herself justice when presenting her claim. The EAT observed that: ‘when you boil down what is said on [the claimant’s] behalf, it really comes down to this: that she did not do herself justice at the hearing, so justice requires that there should be a second hearing so that she may. Now, “justice” means justice to both parties. It is not said, and, as we see it, cannot be said that any conduct of the case by the employers here caused [the claimant] not to do herself justice. It was, we are afraid, her own inexperience in this situation.’ Accordingly, the claimant’s appeal failed. Consideration and Determination

[14]As noted above, that part of the Judgment in respect of which the claimant seeks reconsideration is paragraph (Third):- “(Third) That the “TUPE Complaint” which is given notice of by the claimant at section 8, page 7 of his ET1, is a complaint which enjoys no reasonable prospect of success and is struck out in terms of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 Rule 37(1)(a).”

[15]The complaint of failure in a duty to consult upon a “relevant transfer” for the purposes of the TUPE Regulations 2006 is incorporated by the claimant in terms of an amendment.

[16]As noted at paragraph 28 of the Findings in Fact the whole specification and notice given of that claim is to be found at paragraph 7 in the section 8 paper apart to the claimant’s proposed amended ET1 which was produced at page 31 of the bundle. The averment is in the following terms:- “7. On 29th July 2021, Universal Student Living was taken over by Homes for Students Ltd. It is believed that this was a transfer under the operation of the Transfer of Undertakings (Protection of Employment) Regulations 2006. The claimant was not informed or consulted about this transfer.”

[17]No further specification or particularisation of the TUPE claim is given notice of.

[18]In the course of his submissions the claimant confirmed that the claim was one which he sought to advance in terms of there having occurred a Regulation 3(1)(a) of the 2006 TUPE Regulations, “Relevant Transfer”.

[19]The Findings in Fact made by the Tribunal relative to that Determination are set out at paragraphs 27 to 35 of the Judgment; viz

[20]On 29th July 2021, Homes for Students Ltd acquired Universal Student Living Ltd.

[21]The acquisition proceeded by way of a share sale. Extracts from the Share Purchase Agreement dated 31st March 2021 are produced at pages 147-149 of the Bundle.

[22]On 28th July 2021, notification of Homes for Students Ltd, as a person with significant control of Universal Student Living Ltd, was issued and filed at Companies House (pages 150-151 of the Bundle). The notification confirms that Homes for Students Ltd hold “directly or indirectly, 75% or more of the shares in Universal Student Living Ltd.”

[23]In the course of the acquisition, a total of 100 shares from Universal Student Living Ltd were transferred to Homes for Students Ltd on the 28th of July 2021 (confirmation statement produced at pages 152-154 of the Bundle).

[24]Following the transfer of shares there was no change in the identity of the claimant’s employer. “Relevant Transfer”

[25]A “relevant transfer” for the purposes of the TUPE Regulations 2006 is described in Regulation 3(1)(a) as follows:- “3 A Relevant Transfer (1) These Regulations apply to:- (a) A transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity”.

[26]It is of paragraph (Third) of the Judgment which found the complaint given notice of in those terms to be one which enjoyed no reasonable prospect of success and its consequent strike out upon that ground, that the Application seeks reconsideration. It is in particular Finding in Fact 35: “35 Following the transfer of shares there was no change in the identity of the claimant’s employer.” that the Application seeks be reconsidered.

[27]The Grounds upon which that reconsideration is sought and is said to be in the interests of justice are set out variously in the Application.

[28]In the second line of the Application – “I have listed the reasons for my request and enclosed new evidence which is in the interests of justice.” None of the evidence attached to the application is new in the sense of having become available since the conclusion of the hearing to which the decision relates and the existence of which could not have been reasonably known of or foreseen by the claimant at the time of the hearing. Rather, it is all evidence which was within the claimant’s knowledge and possession both at the time of introducing the complaint of failure to consult in the bald and restricted terms in which it is set out at paragraph 7 of the section 8 paper apart and at the time of the Hearing. As evidence which the claimant now asserts he wishes to found upon, it should have been produced and led at the hearing on 10th January 2023. No explanation is advanced in the application for why the claimant did not do so. Separately and in any event, while such evidence would go to the question of whether or not a relevant transfer had occurred, the preliminary issue to be determined and which was determined at the Open Preliminary Hearing was not that but rather, whether the complaint in the bald and unspecific terms in which it was presented enjoyed no reasonable prospect of success.

[29]The terms in which the claim was and remains presented includes no specification or notice of the matters on which it is now said the claimant wishes to rely. I consider that there is no reasonable prospect, on this ground, of the original decision that the “TUPE complaint” which is given notice of by the claimant at section 8, page 7 of his ET1, is a complaint which enjoys no reasonable prospect of success and on that ground fell to be struck out in terms of Rule 37(1)(a), being varied or revoked.

[30]In numbered paragraphs 1 and 2 of the Application, the claimant refers to pages of the post Hearing documentary evidence which he attaches to his Application as evidencing respectively that the account from which his wages were paid changed, post the share sale acquisition from Universal Student Living Ltd to Homes for Students Ltd, and that he was transferred to the Homes for Students Ltd pension scheme. The complaint as given notice of contains no specification of these matters. Separately, however, changes of the sort referred to are not inconsistent with there being no change in the identity of a party’s employer following a transfer of shares and are steps commonly occurring following acquisition by share transfer. They are not matters which of themselves, let it be assumed they are established, prove that the identity of an employer has changed and that a relevant transfer for the purposes of the TUPE Regulations has occurred.

[31]The documentary evidence now produced is not new in the sense that it was known to and in the possession of the claimant both at the time of his introducing the claim in the terms of which he did and at the time of the Hearing of 10th January. The same is true of the documentary evidence referred to at numbered paragraph 3 of the Application and in the third paragraph from the bottom of page 1 (new Homes for Students phone SIM card letter. The Employment Judge considers that there is no reasonable prospect, on the above Grounds of Application, of the original decision at paragraph (Third) of the Judgment being varied or revoked.

[32]The penultimate paragraph of the first page of the Application is in the following terms:- “The provision of false information/statements throughout this process has seriously affected my mental health and in my opinion has been done with malicious intent.”

[33]The implication arising from the statement is that the false information has been provided by the respondent to the Tribunal/the claimant. There is nothing in the application that goes to show that false information/statements have been provided or that the same was done with malicious intent, nor that any of the information (documentary evidence included in the Hearing bundle and relied upon by the respondent) was false.

[34]Separately, the first paragraph on the second page of the Application indicates that the false information being referred to was provided at what the claimant refers to as “my initial hearing”. The current Application for Reconsideration which is made in terms of Rule 71 on 24th of January 2023, cannot competently encompass any Judgment other than the Tribunal’s Judgment of 18th/20th January 2023.

[35]The Employment Judge considers that there is no reasonable prospect of the original decision being varied or revoked on this ground of application.”

[36]The third paragraph on the second page of the Application is in the following terms – “I have had to take 2 oaths, provide 2 sets of medical records and endure a Tribunal process which has been biased due to the false allegations contained in the respondent’s defence and during my disciplinary procedure.” This sentence does not specify the “false allegations” referred to or in any way go to show how the asserted falseness of such allegations might result in paragraph (Third) of the Tribunal’s Judgment being varied or revoked. The Employment Judge considers that there is no reasonable prospect of paragraph (Third) of the original decision being varied or revoked on this Ground of Application.

[37]In the ante penultimate paragraph of the Application it is stated:- “It should be noted that a fully completed ET3 has never been provided to myself and had a fully completed ET3 been completed in full and truthfully then this matter could have been resolved at an earlier stage. Judge Piters instruction that a fully completed ET3 be provided to me and the respondent’s failure to provide this suggests impropriety.”

[38]The statement contained in that ground is not founded in fact. Examination of the case file discloses, that the Form ET3 as initially drawn and tendered had omitted the respondent’s address. The tendered ET3 was rejected on those grounds. On 13th December 2021 the respondent made Application for Extension of Time for the presenting of a response which Application the claimant opposed on 17th December 21. On 21st December the Legal Officer, having considered the Application and Grounds of Objection, in the context of the Overriding Objective, granted the Application and allowed the updated response to be received as at 13th December 2021. By letter dated 21st December 2021 a copy of the accepted response that is to say a copy of the document which the claimant describes in this Ground of Application has a “fully completed ET3” was sent by the Tribunal to the claimant at his address. No inference of impropriety arises. The Employment Judge considers that there is no reasonable prospect of paragraph (Third) of the original decision (the Judgment) being varied or revoked on this Ground of Application.

[39]The penultimate paragraph of the Application is in the following terms:- “At my initial hearing I requested that for the purposes of the Tribunal that both parties be treated as one. I gave my reasons on 3 occasions but was advised by both Judges to seek legal advice on the definition of a legal entity.”

[40]That statement appears to relate to an initial Case Management Hearing which proceeded on the case on the 13th January 2022. The Application under consideration and made by the claimant in terms of Rule 71 on 24th January 2023, cannot competently encompass Orders of the Tribunal made at the 13th January 2022 at Closed Preliminary Hearing which proceeded before Judge Porter. The Employment Judge considers that there is no reasonable prospect of the original decision (paragraph (Third) of the Judgment) being varied or revoked on this Ground of Application.

[41]In compliance with an Order of the Tribunal, made for the purposes of putting parties on an equal footing, the respondent’s representative had sent to the claimant, in advance of the OPH a written skeleton of the Arguments to be advanced on behalf of the respondent at the Open Preliminary Hearing including those in respect of the TUPE argument. The claimant had fair notice of the respondent’s case and fair opportunity, at the OPH, to put his case.

[42]Whereas in the course of making his submissions at the OPH the claimant asserted, for the first time that he had signed a second Contract of Employment with the alleged transferee, no reference to such a Contract is included in the Application nor is it produced or referred to as forming part of the “New Evidence” tendered in support of it.

[43]Upon consideration of the claimant’s Application, made under Rule 71 and dated 24th January 2023, for reconsideration of paragraph (Third) of the Judgment of the Tribunal dated 18th and sent to parties on 20th January 2023, the Employment Judge considers that there is no reasonable prospect of that part of the original decision being varied or revoked on the Grounds of Application presented. The Application is accordingly refused in terms of Rule 72(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1.