Mr W Cummings v Fresh Property Group Ltd: 6000785/2023

EMPLOYMENT TRIBUNALS

Case No 6000785/2023

Between

Mr. W. CummingsClaimant

Fresh Property Group Ltd RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Smail

In person for claimant

Ms L. Amartey (instructed by counsel) for respondent

Date 16 May 2025

JUDGMENT

[1]The Claimant’s application for Employment Judge Smail to recuse himself is dismissed.

[2]The Claimant’s applications to amend the claim dated 26 May 2024, 30 May 2024, 31 May 2024 and 20 June 2024 (x5) are dismissed.

[3]The Claimant’s claims of sex discrimination relating to August 2020 (which the Respondent accepted in its communication of 31 May 2024 did not require an amendment) are dismissed for having been presented out-of-time. Case Management Orders were made today in respect of the Claimant’s claim for unfair dismissal, which does proceed to a final hearing, and are contained in a separate document. 1 of 7

REASONS

[1]The claimant applies this morning for me to recuse myself from further conduct of the preliminary hearing. To be fair to him he raised this point as early as the 6 August 2024, some days after having received my judgment given orally on 13 June 2024 and in writing sent to the parties apparently on 11 July 2024, whereby I dismissed his assertion that he was a disabled person at any material time to this case. The Respondent opposes the application.

[2]Along with many general observations, the claimant makes a focussed submission in respect of my findings at paragraph 24 and 25 of the reasons. ‘24. At one point in December 2023, the GP had been asked to write a letter recording the history of the Claimant’s medical difficulties including both gallstones but also mental health. There is a passage in this draft letter. In the event the Claimant did not want to pay £35 for the production of the letter but he has answered questions about it before the Tribunal. The doctor had drafted a letter for approval. The mental health section, which was the bottom quarter of the letter, was in these terms: “According to his medical records, Mr Cummings has suffered with depression and anxiety for many years with depression being documented in 2016. He was seen on 11 May 2022 with stress at work and was signed off sick with anxiety. It is documented above that he is being fully assessed by a liaison psychiatrist who advised talking therapy. The referral was made recently to the mental health service. I was concerned by the content of emails and phone contact with Mr Cummings who was expressing suicide. He had been provided with contact details for urgent mental health support and we have encouraged him to make contact with them.” 25. The Claimant told us that the reference to 2016 was essentially misplaced. For a short period in 2016, he had recorded mental health difficulties which were documented, and which were submitted to the local authority to advance his position on the waiting list for social housing. Once he got that social housing, he tells us that ended that particular episode. I had the impression that the Claimant had manufactured the assertion to get the accommodation. He has not sought to argue that there have been recurrent mental health difficulties going back to 2016; he was at pains to say otherwise. He has also expressed the view that the gallstones episode is separate, as he sees it, from the work-related problems; and indeed he tells us that the reason why he did not adduce the medical evidence in the first place for today’s purposes (notwithstanding their obvious relevance) was that it was about gallstones. 2 of 7

[3]That finding at paragraph 25 reflects the evidence that the claimant gave the Tribunal. There was express enquiry made by me in that hearing as to why it was that he did not agree with that GP’s letter saying he had suffered with depression and anxiety for many years with depression being documented in 2016. As the finding states, he was at pains to say that his mental health problems did not go back to 2016, he made it clear that the episode in 2016 was to do with a housing matter and was not relevant, contrary to what the doctor suggested, to an overall long-term condition of depression and anxiety. That was his position; not my position. I recorded what his position was in analysing whether the claimant was a disabled person at the relevant time. I did have the impression as I stated that the claimant had manufactured the assertion to get the accommodation. It was that: an impression. I had that impression because the claimant was not relying upon that episode as indicating a long-term condition of depression and anxiety. He explained it wholly in the context of going up the ladder in terms of qualifying for social housing.

[4]That was one finding of several made resulting in a rejection of the claimant’s assertion that he was a disabled person at the material times. I rejected that argument for the reasons given in the judgment.

[5]The Claimant tells me he has made a reconsideration application. That is yet to be referred to me by the administration. I will deal with it when forwarded. I also reminded the Claimant of his right to appeal to the Employment Appeal Tribunal and that there was a time limit for doing so.

[6]The purpose behind the remainder of the preliminary hearing is to assess whether and on what terms the claimant should be permitted to amend his claim and to determine the Respondent’s application that the sex discrimination claim should be dismissed as being out-of-time. That is going to engage the law on amendments and time limits. We did not have time to address those matters on the last occasion largely because of time taken to consider all the documentation the Claimant wanted to rely upon in respect of the disability issue.

[7]The claimant was employed by the respondent between 15 September 2018 and 2 February 2023. He was absent from work with stress from 29 April 2022 up until the time of his dismissal. The effective date of termination was 2 February 2023. He had been off work for some ten months prior to the dismissal. He wishes to introduce by way of amendment events that took place long before the primary period of limitation for these claims which is three months. He will have to make the application to amend by making submissions as to why the amendment should be granted.

[8]The fact that I made findings in respect of the claimant’s claim to have been a disabled person at the relevant time does not in my judgment preclude me from 3 of 7 fairly assessing whether it is right or wrong to grant these amendments and to determine the issue of time limits for the sex discrimination claim. Ms Amartey submits that the issue is whether to an informed observer it would seem that I was actually or apparently prejudiced biased against the Claimant. My judgment is that the Respondent is right that an informed observer would not come to that conclusion. I came to a judgment on the issue of disability. I would now have to make a judgment on the matter of amendments and time limited. I do not therefore agree to recusing myself. A party to litigation cannot pick and choose their Judge.

[9]The claimant has added to his submissions today that whether or not I recuse myself, he proposes to recuse me on the basis that I am not trusted. He tells me that I am not to be regarded as an independent Judge, I am a representative of the Government, and am in effect in league with the Respondent’s directors. I have decided to ignore those statements rather than take action such as to consider whether or not to strike out the Claimant’s claims for scandalous conduct.

[10]Regrettably for the Claimant parties cannot pick and choose Judges. I am the Judge assigned to this case and it is for me to make the decisions on his applications to amend, and the Respondent’s application to dismiss the sex discrimination claim for being out-of-time, in accordance with the law of amendments and time limits. I am perfectly able and willing to do that. If the claimant choses to disengage from the process and leave that is a matter for him. He has been told it could very well have adverse consequences to the future of his case.

[11]At the conclusion of the ruling on recusal the claimant left the building and has not subsequently participated. Applications to amend

[12]The Claimant, having left, has failed to pursue his many applications for amendment. Accordingly, I dismiss them. The sex discrimination claims relating to August 2020

[13]The Case Management Order sent to the parties on 26 July 2024, also listed as issues whether any or all of the claim, should be struck out on the basis that the Tribunal does not have jurisdiction to hear them. The word ‘dismissed’ may have been better than ‘struck out’ but the meaning is clear.

[14]The claimant was ordered at paragraph 12 of that Order as follows – By 9 August 2024, the claimant will produce a witness statement of no more than 1500 words setting out why his sex discrimination complaints were not 4 of 7 presented to the Tribunal earlier and any factors relevant to the delay in presenting the complaints.

[15]The Claimant has provided a witness statement. The Respondent has provided a bundle of documents in support of its application. Accordingly, the matter of time limits for the sex discrimination claim is squarely before the hearing and I have addressed the question of whether the sex discrimination claims should be dismissed on the basis that they were presented out of time or alternatively whether it would be just and equitable to extend time.

[16]Prior to my involvement in the proceedings the case came before Employment Judge Roper at a preliminary hearing on 23 April 2024. Employment Judge Roper identified the unfair dismissal issues which remain and will go forward to a final hearing, should the claimant wish to pursue his claim of unfair dismissal. It also listed issues of disability discrimination. Those claims now fall away because I have ruled the claimant was not disabled at any relevant time. In correspondence the parties were given fourteen days to check the accuracy of the issues. The claimant had ticked the sex discrimination box. He did allude to certain incidents in his original claim. The respondents accepted that by letter from their solicitors of 31 May 2024. They say that it is right that the following should have been added to the issues as claims of direct sex discrimination.(a) In August 2020 during an interview for the general manager for the barn role the claimant was not offered the opportunity by Katie Lewis and Josh Wisniewski to explain his concerns about the recruitment process.

(b) In August 2020 during an interview for the general manager for the barn role Katie Lewis and Josh Wisniewski did not give serious consideration to the claimant’s answers to questions.

(d) In August 2020 the claimant was not offered the general manager for the barn role.

[17]As we know the claim was presented on 2 May 2023 with an ACAS certificate and notice of conciliation being the same day on 18 April 2023. These allegations about August 2020 are plainly outside the primary period of limitation.

[18]Section 123 of the Equality Act 2010 deals with the time limits for bringing claims under that Act (discrimination claims). (1) … proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or 5 of 7 (b) such other period as the employment tribunal thinks just and equitable.

[19]The Tribunal does have a discretion to extend time should it be just and equitable to do so. The length of, and reasons for, the delay and whether the delay has prejudiced the respondent evidentially need to be considered.

[20]The claimant in his witness statement gives the primary explanation that he was fearful to raise the matter. However, the claimant had been raising to the Respondent matters of alleged sex discrimination and other matters of complaint for a considerable period of time prior to the presentation of the claim.

[21]He did in August 2020 raise concerns about the interview process internally. He again did so on 2 February 2021 raising concerns of sex discrimination. He told the Respondent that in September/October 2021 he learnt of the perfect comparator against whom to prove less favourable treatment. That perfect comparator was Emily Tine.

[22]Within the Respondent the claimant was put on a performance improvement plan. He raised complaints, treated as grievances, about his performance improvement plan on 18 August 2021 and March 2022.

[23]He had been intimating claims to the Employment Tribunal directly to the respondent and mentioning ACAS conciliation on twelve occasions between 13 May 2022 and 18 December 2022. He made extensive reference to his intention to bring Employment proceedings in a capability meeting of 23 January 2023.

[24]His telling the Respondent he had the perfect comparator in September/October 2021 would suggest that as the last arguably reasonable date for him to bring proceedings challenging matters that had occurred in August 2020. If he wanted to bring proceedings, having intimated them extensively, he should have done so considerably earlier than 2 May 2023.

[25]The respondent asserts in its application on time limits that Katie Lewis and Josh Wisniewski have now left the business. They say that a search has not managed to glean any documents recording the decision-making processes in August 2020. There would plainly be evidential prejudice on the respondent in having to deal with these allegations now, four years after the incident, and at the time of the ET1 some two years and nine months afterwards.

[26]I am satisfied on the balance of prejudice that this claim should be dismissed for having been presented out of time. The narrative of the claimant’s employment in the later years and months was far more about capability to do the job. He was off as we know from 29 April 2022 and a collapse of the employment relationship is evident from the exchange of emails over the later months. The events of August 2020 were far from being the centre of focus at the end of the claimant’s employment. The August 2020 claims are dismissed for being out of time. 6 of 7

[27]That means the claim left is the one of unfair dismissal and the issues are as set out in the Order of Employment Judge Roper on 23 April 2024.

The Facts

[28]A disciplinary investigation took place, including the conducting of witness interviews. The product of the investigation was an investigation report, which was sent to the Claimant on 28 April 2022 along with an invitation to a disciplinary hearing which was to take place on 5 May 2022, but he was not provided with all of the documents considered during the investigation, such as the minutes of witness interviews.

[29]The Claimant began at this point to ask for documentation. In an email on 28 April 2022 at 13.25 (document 41 of the Claimant’s documents) the Claimant responded to the disciplinary meeting invitation saying he wanted everything which had been sent within the company about him from the start of the investigation, but added that it was possible that there would be “further inquiries and requests for more information – possibly going back to the start of my employment with Fresh”. He added that he would also “need” to ask questions of the disciplinary manager, Eddie Kane (Head of Customer Experience) for the Respondent, and the HR consultant.

[30]On 29 April 2022, the Claimant began a period of absence stated to be on the basis that he had anxiety.

[31]The Claimant began to request numerous documents and items of information from the Respondent. There is significant correspondence between the parties which I do not quote or refer to. It is not necessary or proportionate for the purposes of this judgment to set out all of it.

[32]In an email dated 2 May 2022 (page 130, Main Bundle), the Claimant made numerous specific information requests, as well as saying he wanted “transcripts, email chains and other information, I requested on or before the 29th April 2022”. He referred to the previous grievance process. Later in the email, the Claimant stated (in relation to the disciplinary meeting): “have you sent them my conditions i.e. that they are involved as Man [sic] and Woman [sic] and nothing is confidential i.e. I have the power to use any and all information and comments unfettered within an [sic] outside Fresh and/or Watkin Jones any time I choose? They need to confirm they agree before I talk to them. I will be conducting this entire process via email as I feel that speaking to you or and Man [sic] or Woman [sic] working for or with you always places, what I feel, to be their own subjective-spin on the process and opinion/conclusion” (page 130, Main Bundle). He went on to say: “Until I have all the information I require, and establish trust (if possible, you will need to cancel the 5th of May meeting as a formal meeting as I will refuse to participate until I have all the information I require/request” (page 130, Main Bundle).

[33]Jackie Kelly (Group Human Resources Director for the Respondent) sent a brief response on 3 May 2022 (page 129, Main Bundle) in which she responded to some of the Claimant’s queries which related to the current disciplinary process and stated that “The investigation… did not involve any earlier matters of your employment and was solely focused as set out in the investigation letter based on your performance improvement plan (PIP). Any previous employment matters… will not be taken into consideration and information you wish to present in relation to these matters will not be included”. The Claimant replied on 3 May 2022 with a further lengthy email requesting more information and documents. In this email he stated among other things “I made it clear after The Barn Grievance investigation that I did not agree that investigation was closed.” (page 127, Main Bundle).

[34]The disciplinary meeting did not take place on 5 May 2022. The Claimant’s lengthy emails requesting information and documents continued. He continued to bring the matters which had taken place in relation to his previous grievance into his communications and insist that they were relevant to the process. The Claimant continued to be on sickness absence from work. Occupational Health and Health Meeting Process

[35]On 23 May 2022, Ms Kelly requested the Claimant’s permission to arrange an occupational health appointment to assess the Claimant’s fitness for work and attend the planned disciplinary meeting (page 141, Main Bundle). The Claimant responded in a lengthy email, asking for information about the involvement of Occupational Health and saying: “It is impossible to agree to allowing an OHP in on the issue if I have no idea why they are invited.” (page 140, Main Bundle). Ms Kelly responded (page 138, Main Bundle) saying that Occupational Health was a standard support mechanism to understand whether colleagues were fit for work and to attend a formal meeting. She went on to say that a disciplinary meeting could not be held by email and could be held in the Claimant’s absence.

[36]The Claimant’s response on 24 May 2022 (page 134, Main Bundle) asked for the basis on which the disciplinary meeting could not be done by email saying that he was not refusing to attend but only stipulating that he would do so by email. In this email the Claimant also asked who the Occupational Health provider would be, how often the Respondent had used their services and whether he could choose an Occupational Health provider.

[37]The Respondent wrote to the Claimant on 17 June 2022 (page 154, Main Bundle) saying that the Occupational Health provider was Medigold Health, with whom the Respondent had worked for a number of years and confirming that the Claimant would not be able to choose the provider.

[38]Around this time the Respondent also sent the Claimant the recordings of interviews between the disciplinary investigation manager and those she had interviewed as part of her investigation.

[39]The parties continued to interact in relation to an Occupational Health appointment, with the Claimant stating on 22 June 2022 “I may give consent when I am satisfied they are honest, impartial and open. You introduced Medigold, I need time to assess them.” (page 156, Main Bundle). In relation to the Disciplinary meeting the Claimant continued to insist he would not attend a meeting held face-to-face or via MS Teams but would only participate in the meeting via email (page 157, Main Bundle).

[40]The Claimant continued to send the Respondent lengthy emails with numerous requests regarding documents and information. The Claimant took the position that he was also investigating the Respondent and considering a potential “Company Improvement Plan” (page 166, Main Bundle).

[41]On 11 July 2022 the Claimant sent an email to Medigold, with a heading which stated he could use all information and communication as he saw fit. He queried whether there was bias and conflict of interest as it seemed that the Respondent was paying for Medigold’s services (page 171, Main Bundle). Medigold responded saying that “regardless of a paid service our main priority when assessing any individual from any organisation is to support the person themselves and provide the best possible advice on how a business is able to do so. Although we do support a business through our service and aim to support them as best we can, the person at the forefront of our concern would be the individual we’re assessing and would have a duty of care to ensure we remain impartial and provide the best possible professional advice. All advice provided by ourselves can only be distributed to an employer if consent has been provided by the patient”. In relation to certain enquiries, the Claimant was referred back to the Respondent (pages 169 and 170, Main Bundle).

[42]On 27 July 2022 the Claimant was invited (page 178, Main Bundle) to attend a Health Meeting with Katy Lewis (Head of Customer Experience) on 9 August 2022. This was stated to be a meeting to understand the reasons for the Claimant’s absence and what support was required to help him to return to work. The Claimant responded on 2 August 2022 implying that he considered there to be a conflict of interest in relation to Ms Lewis and asking for a copy of the Attendance Management policy (page 176). In the same email the Claimant declined to attend a face to face meeting saying that he would be willing to it by email (page 176, Main Bundle). The Respondent sent the Claimant the policy on 3 August 2022, offered to change the manager to Lindsey Cullen (Head of Customer Experience) and offered to hold the meeting via MS Teams (page 176, Main Bundle).

[43]The Claimant did not attend the Health Meeting on 9 August 2022, the Respondent therefore sent an invitation for a new meeting to take place on 18 August 2022 with Ms Cullen (page 181, Main Bundle). The Claimant continued to refuse to attend the meeting by MS Teams and wanted to engage in the meeting via email, which the Respondent refused. The Respondent agreed to record the meeting and send a copy of the recording in order to deal with the Claimant’s concerns regarding inaccurate recording of what was being said at the meeting and explaining that email exchange so far had not been effective in moving the situation forward (page 201, Main Bundle).

[44]On 17 August 2022, the Claimant told the Respondent that he would send the consent for to Medigold but that “I am sending the form to see the questions” (page 195, Main Bundle). The Claimant confirmed that he would not attend the Health Meeting (page 206, Main Bundle).

[45]On 9 September 2022, the Respondent completed the management referral form for Medigold (page 208, Main Bundle), which was provided to the Claimant (page 190, Main Bundle). The Claimant provided comments and queries in an 11 page document, which the Respondent agreed to include with its referral (rather than amending the management referral) (page 188, Main Bundle).

[46]On 9 September 2022 the Claimant provided a consent form to Medigold (page 213, Main Bundle). However he accompanied the consent form with an email saying that the consent was subject to his own terms and conditions which he set out in his email (page 225, Main Bundle).

[47]The Claimant was sent an email from Medigold on 7 October 2022 (page 233, Main Bundle) with details of a video appointment which had been booked for him on 18 October 2022. The Claimant responded by email saying that he was not accepting at this point referring to concerns he had raised (page 233, Main Bundle). The Claimant continued to copy Medigold to emails with the Respondent, as well as sending them lengthy emails with queries in relation to which Medigold referred the Claimant back to the Respondent. The appointment on 18 October 2022 was cancelled. Medigold wrote to the Claimant saying that the majority of his questions needed to be addressed by the Claimant’s employer and that no appointment would be booked until he was happy for it to be booked (page 238).

[48]On 9 November 2022 the Respondent emailed the Claimant saying “As we have not been able to hold a Health Review Meeting with yourself (sic) to obtain an update on your absence from work and as you have chosen not to consent to occupational health having been given further information from them, we will now be managing your absence from work and outstanding disciplinary based on the information we have to hand.”. The Claimant was invited to a disciplinary hearing (page 254, Main Bundle). The Claimant’s response was that he would have to decline for now the invitation to attend any meeting in person.

[49]On 10 November 2022, Medigold withdrew its involvement in relation to the Claimant saying “we cannot continue with the consultation given the constraints given by Mr Cummings, the considerable amendments he has made to the consent and the 3 pages of questions he has asked which we at Medigold are unable to answer on the half of the client. He has also stated that he has no trust in Medigold, has asked what specific questions will be asked before the consultation takes place, states our clinician will have a conflict of interest and will therefore not be impartial - although under GMC regulations we are expected to be. His restrictions and comments in my view mean that it is not reasonable for us to continue with offering a consultation as there is a breakdown in doctor patient relationship.” (page 252, Main Bundle). Disciplinary Meeting and Correspondence

[50]The disciplinary hearing took place on 21 and 22 November 2022 in the Claimant’s absence. Mr Kane issued the outcome letter on 2 December 2022 (page 257, Main Bundle). He found that the Claimant had refused to carry out reasonable and lawful management instructions and failed to carry out his normal duties in relation to matters which had been discussed in his PIP. Mr Kane’s finding was that “I believe it was more that you did not want to complete the tasks than having a lack of support and resource as you claim” (page 258, Main Bundle). Mr Kane issued a final written warning which was to stay on the Claimant’s file for a period of 12 months. The outcome letter informed the Claimant that he had five days to appeal the outcome of the disciplinary process.

[51]The Claimant sent a series of long narrative emails from which it was not clear to the Respondent that he was submitting an appeal. The Respondent emailed the Claimant on 22 December 2022 (page 263, Main Bundle) saying it was unclear whether or not he was appealing and asking the Claimant to confirm the position. The Claimant again responded with a narrative email (pages 261 and 262, Main Bundle) and the Respondent replied on 11 January 2023 (page 261, Main Bundle) saying that since he had not provided confirmation the appeal timeframe had closed. In oral evidence the Claimant said that Mr Kane had not replied to his question as to whether the Claimant’s defence document had been considered in the disciplinary process, and the Claimant was therefore not able to formulate his grounds of appeal. The Tribunal notes an email from Mr Kane to the Claimant dated 9 December 2022 in which he stated, “I did read your response in entirety [sic] and did not miss your statement” (page 267, Main Bundle). Capability Process

[52]On 13 January 2023 the Claimant was invited to attend a Capability Meeting (page 276, Main Bundle) which was stated to be in order to consider:(i) whether there were any reasonable adjustments which could be made to enable the Claimant to return to work; and

(ii) whether the Respondent may have to give consideration to terminating the Claimant’s employment on the basis that he was unlikely to return to work in the foreseeable future. The meeting was to take place with Mr Cordin chairing the meeting. The Claimant was notified of his right to be accompanied to the meeting. At the Claimant’s request the meeting was adjusted so that it took place in the afternoon and by telephone (page 287, Main Bundle). As requested, Mr Cordin also sent the Claimant his questions in advance (page 290, Main Bundle).

[53]On 21 January 2023 the Claimant disclosed to the Respondent a report dated 8 November 2022 from the Centre for Health and Disability Assessments (document 57, Claimant’s documents). The report set out that the Claimant had no regular GP input other than fit notes, was not having therapy or counselling and was not taking medication. It concluded that the Claimant was likely to be at substantial risk to his mental health if found capable for work.

[54]The Claimant attended the Capability Meeting on 23 January 2023 by telephone. It was agreed that each side would record the call and the transcript is at page 291 of the Main Bundle. It lasted around two hours. The Claimant confirmed that he was not taking any medication. He did not indicate that there was any return date which had been anticipated by his GP. The Claimant referred to his historic concerns regarding his treatment going back to January 2021 as being the barrier to him returning to work (page 306, Main Bundle). The Claimant raised that he was conducting his own investigation into the Respondent and those involved, saying “I consider that if they can investigate me in my job role, then I have an absolute right, a reciprocal right to ask about them and their job role. Anybody that gets voluntarily involved in this situation” (page 310, Main Bundle). He said that he did not accept the disciplinary warning and felt that it meant that because of the warning any small mistake would be used as an excuse to get him (page 311, Main Bundle).

[55]The Claimant was asked about whether any reasonable adjustments could be made, and his response was that he was investigating those at the Respondent and should have his questions answered (pages 311 and 312, Main Bundle). The Claimant went on to say, “No way I’m returning to that environment” (page 312, Main Bundle) and “Of course I can’t return to work. I’d be returning back to the Hornets nest” (page 340, Main Bundle).

[56]In relation to the question of why the Claimant had not consented to the Occupational Health referral, the Claimant explained that he felt that there was a conflict of interest and that they were being paid by the Respondent so would not “bite the hand that feeds them” (page 321, Main Bundle). He felt he had asked reasonable questions and made reasonable amendments to the consent form (page 321, Main Bundle).

[57]Shortly after the meeting it was reported that the Claimant had been seen working as a Deliveroo driver, and CCTV images were obtained of a Deliveroo driver, which were said to depict the Claimant. These images are included in the bundle (pages 381 to 385 of the Main Bundle). Although these were sent to Mr Cordin, and he referred to them in the reconvened capability meeting, based on Mr Cordin’s evidence (which was unchallenged), I find that he had already made the decision to dismiss the Claimant at the time of being sent this information and did not take it into account in his decision. I therefore do not deal with it further. The Claimant also sent Mr Cordin a number of emails (pages 375 to 379) following the meeting, primarily discussing whether ACAS should be involved.

[58]Mr Cordin decided to dismiss the Claimant. Based on Mr Cordin’s evidence which was not challenged by the Claimant, he took the following matters into account when making the decision. The Claimant had been absent for eight months and had stated during the hearing that he could not return to work for the Company. There was no medical evidence showing any likely return date. There had been a relationship breakdown between the Claimant and the Respondent. There was an impact on other employees as a result of the Claimant’s absence, those employees were also having to manage the Claimant’s duties in addition to their own which created a pressure on them, and Mr Cordin was also mindful of their welfare. Mr Cordin did not think it was likely that the Claimant would consent to another Occupational Health referral, based on his past refusal. He did not think that the Claimant’s concerns would be assisted by moving him to a different location, as his mistrust related to the company more widely. He did not consider that it was feasible to re-open previous grievance and disciplinary processes which had already been concluded, and this would undermine the finality of those processes. The Claimant would only be satisfied if the around 10 to 15 individuals involved were disciplined, and would want to know these outcomes, which would have been confidential in any case. There did not appear to be any realistic means of resolving the Claimant’s concerns given his refusal to engage with the Respondent.

[59]The meeting was reconvened by telephone on 2 February 2023. Mr Cordin informed the Claimant that he was being dismissed due to ill health. Mr Cordin explained that there was no timeframe for the Claimant’s return, and it did not appear that his concerns could be resolved by a site move. This was followed up by the dismissal letter dated 3 February 2023 (page 414, Main Bundle). The letter set out the reasons for the dismissal: there was no timeframe within which his anxiety would improve to the point he could return to work; the Claimant’s position was that returning to work was not an option; and that the Claimant’s anxiety related to the Respondent’s central team so moving him to a different site would not resolve it. Later in the letter there was a reference to Mr Cordin’s belief that the Claimant had worked as a delivery driver, but this was not set out in the section that related to the reasons for the dismissal decision.

[60]The Claimant was dismissed with effect from 2 February 2023, and he was paid in lieu of notice. The dismissal letter informed the Claimant of his right to an appeal. Appeal

[61]The Claimant submitted an appeal on 3 February 2023 (page 416, Main Bundle). This related primarily to the allegation of working for Deliveroo, which the Claimant said he needed to see the evidence for before he could respond/appeal to the decision to dismiss him on the ground of ill-health.

[62]Tracy Stanton (Director of Customer Experience for the Respondent) was appointed to hear the appeal, and invited the Claimant to an appeal meeting which was to take place on 13 February 2023 by Teams (page 417, Main Bundle). The Claimant was notified of his right to be accompanied to the meeting.

[63]Ms Stanton had left the Respondent’s business at the time of the hearing and was therefore not present to give evidence. Ms Lewis was involved from an HR perspective in the process relating to the Claimant, including the appeal. These findings are based on the documents in the hearing bundle.

[64]The appeal hearing took place on 13 February 2023. A transcription of the meeting is at pages 418 to 456 of the Main Bundle. During the meeting, the Claimant said “It’s become untenable. So in one way, I’ve pretty much said that I’ve made it clear that seems as these issues have been going back so long to January 2021, if not before. To be honest with you” (page 420, Main Bundle). He went on to say “I can see that the termination of the contract on ill health. Is something like that. I think is well founded” (pages 420 and 421, Main Bundle). He went on to say that the reason for the appeal was because it did not address the reason for the anxiety and stress being compounded since January 2021 and he wanted that to be looked at properly (page 421, Main Bundle).

[65]Ms Stanton asked the Claimant “…the question asked around whether you see yourself returning to fresh (sic), I believe you said no. Has that decision in your mind changed in anyway (sic) or is that still your feeling?” (page 427, Main Bundle). The Claimant responded: “There is absolutely no way” (page 428, Main Bundle). The Claimant referred to a desire to have ACAS involved in a type of oversight capacity and to wanting all of his questions answered going back to January 2021, and those involved to be investigated (page 433, Main Bundle). The Claimant was concerned that he had no opportunity to review the evidence for, or respond to, the allegation that he had worked for Deliveroo and that he was concerned that this had formed part of the decision (page 435, Main Bundle).

[66]Following the meeting, the Claimant sent Ms Stanton an email which set out questions and comments related primarily to the previous disciplinary process which had been chaired by Mr Kane (pages 457 and 458, Main Bundle).

[67]I find, based on Ms Lewis’ oral evidence, that she met with Ms Stanton following this, and discussed Ms Stanton’s decision. Ms Stanton told Ms Cordin that she had decided to uphold the dismissal because the Claimant had been very clear that he could not return to work. There did not appear to be any reasonable adjustments which could be made to enable him to attend work. Ms Stanton felt that the only option available was to uphold the dismissal decision.

[68]On 20 February 2023, Ms Stanton sent the Claimant a letter stating that she upheld Mr Cordin’s decision, which had been based on the fact that there was no timeframe for the Claimant to return, that the Claimant had said returning to work was not an option, and because this would not be resolved by a move to another site (page 461, Main Bundle). The Law Unfair dismissal

The Law

[69]The reason for the dismissal is pleaded to be capability which is a potentially fair reason for dismissal under section 98 (2) (b) of the Employment Rights Act 1996 (“ERA 1996”). Section 98 of ERA 1996 sets out the following: “(2) A reason falls within this subsection if it— (a)relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, … (3)In subsection (2)(a)— (a)“capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality”.

[70]The Tribunal must then determine whether the dismissal was fair or unfair pursuant to section 98 (4) of ERA 1996 which provides that: “…. the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and –

(b) shall be determined in accordance with equity and the substantial merits of the case”.

[71]The Tribunal must apply the range of reasonable responses which was summarised by Mr Justice Browne-Wilkinson test in Iceland Frozen Foods Ltd v Jones

1983 ICR 17

, EAT,: “We consider that the authorities establish that in law the correct approach for the… tribunal to adopt in answering the question posed by [S.98(4)] is as follows:(1) the starting point should always be the words of [S.98(4)] themselves;

(2) in applying the section [a] tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the… tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer’s conduct [a] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the… tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”

[72]The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances.

[73]The guidance given in BS v Dundee City Council

[2014] IRLR 131

CSIH (approving cases of Spencer v Paragon Wallpapers Ltd

[1976] IRLR 373

, and East Lindsey District Council v GE Daubney

[1977] IRLR 181

), was as follows: “First, … it is essential to consider the question of whether the employer can be expected to wait longer. Secondly, there is a need to consult the employee and take his views into account. … this is a factor that can operate both for and against dismissal. If the employee states that he is anxious to return as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him. Thirdly, there is a need to take steps to discover the employee's medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered.” [27]

[74]Where the claimant’s incapacity was caused or exacerbated by the employer's conduct, this does not mean that the dismissal of the employee by reason of that incapacity is thereby rendered unfair, see McAdie v Royal Bank of Scotland

[2008] ICR 1087

CA. The Court of Appeal confirmed the EAT position that “there must be cases where the fact that the employer is in one sense or another responsible for an employee's incapacity is, as a matter of common sense and common fairness, relevant to whether, and if so when, it is reasonable to dismiss him for that incapacity. It may, for example, be necessary in such a case to ‘go the extra mile’ in finding alternative employment for such an employee, or to put up with a longer period of sickness absence than would otherwise be reasonable.” However, the EAT went on to “[sound] a note of caution about how often it will be necessary or appropriate for a tribunal to undertake an inquiry into the employer's responsibility for the original illness or accident, at least where that is genuinely in issue: its concern will be with the reasonableness of the employer's conduct on the basis of what he reasonably knew or believed at the time of dismissal, and for that purpose a definitive decision on culpability or causation may be unnecessary”.

[75]As set out in East Lindsey District Council v Daubney

1977 ICR 566

, EAT: “Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done.”

[76]If an employee continually does not cooperate with an employer’s attempts to obtain medical information, the employer will be left with no alternative but to make a decision on capability based on the limited information before it (O’Donoghue v Elmbridge Housing Trust

2004 EWCA Civ 939

, CA).

[77]Although it was a case relating to a conduct dismissal, British Home Stores Limited v Burchell

1980 ICR 303

, EAT, sets out a general approach to reasonableness which is also applicable to a capability dismissal (DB Schenker Rail (UK) Ltd v Doolan EATS 0053/09). Three elements must be established in relation to a capability dismissal (as to the first of which the burden of proof is on the employer; as to the second and third, the burden is neutral):(i) that the employer genuinely believed the employee not to be capable;

(ii) that the employer had in mind reasonable grounds on which to sustain that belief; and

(iii) that the employer, at the stage (or any rate the final stage) at which it formed that belief on those grounds, had carried out as much investigation as was reasonable in the circumstances of the case. Discussion and conclusions The Claimant’s specific challenges to fairness (paragraph 1.5 of the List of Issues)

[78]The Claimant agreed in oral evidence that there were no disciplinary charges in October 2021. He stated that had been incorrectly drafted by Employment Judge Roper. Therefore paragraph 1.5.1 is not factually upheld. Even if this had been taken to relate to the later disciplinary process starting in April 2022 in relation to the Claimant’s PIP, it is clear based on the documents before the Tribunal and the Claimant’s own evidence that he was not fulfilling the relevant objectives and became defensive in his approach towards the Respondent. There was nothing from which I could conclude that the allegations were concocted. The Claimant did not appeal the disciplinary outcome in circumstances where it was open to him to do so. Its relevance to the later capability process is only that it affected the Claimant’s feelings about returning to work. This did not influence the Respondent’s decision.

[79]The Claimant alleged at 1.5.2.1 of the List of Issues that the Respondent had not recorded meetings truthfully and accurately, and/or providing the Claimant with an accurate transcript. The Claimant conceded that this did not relate to the capability dismissal process: there are transcripts of each meeting which both parties recorded and are agreed. To the extent that this related to previous processes, I was not pointed to evidence of untruthful or inaccurate meetings. Further, I cannot see that it is relevant to the fairness of the capability process.

[80]At paragraphs 1.5.2.2 and 1.5.2.3 of the List of Issues the Claimant raises an allegation that the Respondent had not provided the Claimant with the relevant information so that he was fully appraised of the situation against him; and not provided the Claimant with full information and background witness statements to justify the conclusions of the disciplinary report against him (respectively). It is clear that these points relate to the disciplinary process commenced in April 2022 rather than the capability process. I note that the Claimant was in any case, before the disciplinary hearing took place, provided with transcripts of interviews taken into account in the disciplinary investigation (which I understand that this point relates to). However, in any case, I consider that the process in relation to the disciplinary process is not relevant to the fairness of the process relating to the capability process.

[81]At paragraphs 1.5.2.4 of the List of Issues the Claimant alleges that the Respondent should have allowed the Claimant to correspond and engage with the Respondent’s processes by email. The Claimant’s reasons for wishing to interact by email was that he felt that his interactions would otherwise be spun against him (paragraph 32). However, during the capability process, it was agreed that both parties would record the meetings. This was an attempt by the Respondent to address the Claimant’s concerns. The Respondent’s submission is that other correspondence was done by email, but that for the capability process a meeting was necessary in order to have two way dialogue. In the absence of any medical input which deemed the Claimant was too unwell to correspond in any other way than email, I consider that this did not affect the fairness of the meetings with Mr Cordin and Mr Stanton. There is no evidence that this format in relation to the meetings, both of which the Claimant did attend, in fact affected their fairness.

[82]At paragraphs 1.5.2.5 of the List of Issues the Claimant alleges that the Respondent should have responded to the questions raised by the Claimant and answering them appropriately in good time. Based on the voluminous correspondence, I consider that the Respondent did so to the extent which could be reasonably expected.

[83]Allegation 1.5.2.6 regarding processing the Claimant’s appeal in good time was withdrawn by the Claimant in the hearing.

[84]At paragraphs 1.5.3 of the List of Issues the Claimant alleges that the capability meeting on 13 January 2023 was originally to be chaired by Katy Lewis, against whom the Claimant had previously complained, which caused additional stress to the Claimant. The date of the meeting was 9 August 2022. Otherwise it is correct that Ms Lewis was to chair a health meeting. It appears to me to have been done inadvertently and was immediately rectified when the Claimant indicated he would like an alternate manager. Ms Cullen was substituted as the chair. Given the Respondent’s approach in rectifying the Claimant’s concern, I find that this did not affect the fairness of the capability meeting or the capability process as a whole.

[85]At paragraphs 1.5.4 of the List of Issues the Claimant alleges that the replacement manager at the capability meeting on 13 January 2023 was at the same level of management despite the fact that the Claimant had made it clear that he did not have any trust in that level of management. The date of the meeting is again incorrect. However, it is correct that Ms Cullen was a Head of Customer Experience. This was the same level as Ms Katy Lewis, and indeed the manager who heard the Claimant’s grievance in 2021 with which he took issue. The Claimant took a reasonable approach in replacing Ms Lewis with Ms Cullen when the Claimant raised a concern about Ms Lewis’s previous involvement. It was an appropriate level of management to conduct a capability meeting. The Claimant’s concern about an entire level of management within the company was not based on any objectively justified concern. It was reasonable for the Respondent to refuse to escalate this matter. It did not affect the fairness of the later dismissal process.

[86]At paragraphs 1.5.5 of the List of Issues the Claimant alleges that the Respondent failed to provide sufficient information to the Claimant despite repeated requests such that he had no trust in the process and was therefore unable to engage with that process. This allegation relates to the historic grievance and disciplinary processes rather than the capability process which led to his dismissal. I adopt the findings set out above at paragraph 80 in relation to the disciplinary process. Further, I consider that provision of information related to the 2021 grievance process is not relevant to the fairness of the capability process which this complaint relates to.

[87]At paragraphs 1.5.6 of the List of Issues the Claimant alleges that the Respondent’s Occupational Health advisers, Medigold, were given incorrect information by the Respondent such that when the Claimant challenged this, Medigold refused to prepare a report, and therefore the Respondent did not have sufficient information before it when it took the decision to dismiss the Claimant. I do not factually uphold this allegation. In my finding the reason for Medigold withdrawing from acting were the unreasonable actions of the Claimant by making considerable amendments to the consent, asking questions of Medigold which should have been directed to the Respondent, stating he had no trust in Medigold, and accusing it of a conflict of interest despite reassurances that its primary duty was to the patient (see paragraph 49 above).

[88]At paragraphs 1.5.6 of the List of Issues the Claimant alleges that, at the capability meeting on 13 January 2023 the Claimant was wrongly accused of having obtained alternative work as a delivery driver and despite the Claimant’s protestations and request for an investigation, the Respondent refused, and appeared to have made its decision partly or wholly on that basis. Again, the date of the meeting is incorrect. This was raised with the Claimant at the reconvened capability meeting on 2 February 2023. I have found that (whether or not the allegation was true, in relation to which I consider I do not have sufficient evidence), this matter did not affect Mr Cordin’s dismissal decision (see above at paragraph 57). As such, in my finding it did not affect the fairness of the dismissal. However, it was likely ill-judged for the Respondent to have raised it with the Claimant in the dismissal meeting and dismissal letter, given it was not relevant to the decision and the Claimant had not had the opportunity to address it.

[89]The Claimant withdrew paragraph 1.5.7 in relation to the appeal. Unfair Dismissal Consultation

[90]The Respondent conducted the type of contact and consultation during the Claimant’s sickness absence and leading to his dismissal which a reasonable employer could be expected to undertake. Attempts were made to keep abreast of the Claimant’s progress and maintain contact with him during his absence. The Respondent attempted to obtain Occupational Health input to understand what the prognosis was, and what could be done to support the Claimant to return to work. The Claimant’s distrust of the chosen Occupational Health provider led him to challenge the Occupational Health provider to the point that they felt they could no longer provide a consultation. The Claimant was asked for his own views as to his likely return to work and the barriers which were preventing him from doing so. Medical position

[91]The Respondent took steps to obtain medical evidence through Occupational Health advice, but the Claimant’s interactions with the provider meant that this was not possible. The medical evidence before them therefore consisted of the Claimant’s fit notes.

Conclusions

[92]I find that Mr Cordin had a genuine belief that the Claimant was absent and not able to work because of anxiety. This is based on his witness evidence.

[93]Therefore, in my finding, the reason for the dismissal was capability, which is a potentially fair reason within section 98(2)(b) of ERA.

[94]Mr Cordin’s belief was based on the Claimant’s own statements that he could not return to work due to his anxiety, the length of his absence and the Claimant’s fit notes stating that he was not fit for work because of anxiety. This belief was based on reasonable grounds.

[95]In relation to the reasonableness of the investigation or in effect, the procedure was also within the range of reasonableness. The Claimant was able to put forward his position and provide evidence he wanted to be considered. Mr Cordin considered whether the barriers to the Claimant’s return could be resolved. It was within the reasonable range of responses for an employer to be unwilling to re-open historic grievance and disciplinary processes which have previously run their course. Mr Cordin considered alternative positions, and reasonably concluded that the Claimant’s concerns would not be resolved by being put into a role at a different site.

[96]The Claimant inferred a number of times that the Respondent’s conduct had caused his ill health. There is no medical evidence before me on this point. Indeed I note that at paragraph 29 of the Judgment sent to the parties on 26 July 2023, Employment Judge Smail (who did have the medical evidence before him) found as follows: “The Respondent’s fundamental position is that the nine-month absence from work from 28 April 2022 was not because the Claimant was suffering symptoms of anxiety to the extent of them being disabling on normal day-to-day activities but rather, he needed the time freed up to engage in defending himself from the Respondent’s managerial challenges to him. I accept that as the factual position.” (page 77, Main Bundle). Nevertheless, the Claimant had told Mr Cordin of his perception as to the reasons for his anxiety (namely the work-related matters going back to January 2021), and in my finding Mr Cordin took that into account to the extent a reasonable employer would. In all the circumstances, could the Respondent be expected to wait any longer and, if so, how much longer

[97]The circumstances in this case were that:a. the Claimant had been off sick for nearly nine months;

b. the Claimant was unwilling to engage on reasonable terms with Occupational Health, which meant the Respondent was unable to receive advice from Occupational Health;

c. the Claimant wished to re-open historic processes and allegations going back to January 2021 in order to resolve his concerns;

d. the Claimant did not himself envisage he would be well enough to return within any stated timescale;

e. a move to another site would not seem to resolve the Claimant’s concerns.

[98]In these circumstances, the Respondent could not be expected to wait any longer as this would not appear to be likely to resolve matters or enable the Claimant to return. The Claimant himself did not see a return to work to be on the horizon. The Respondent had taken reasonable steps to obtain medical advice from Occupational Health regarding timescale for return and adjustments, but none was available. Mr Cordin reasonably considered steps to remove any barriers to return and there are no alternatives to dismissal which appeared likely to be effective available.

[99]The Claimant’s position regarding his return and the medical information remained the same at appeal stage.

[100]In all of these circumstances I consider that it was within the range of reasonable responses to dismiss the Claimant.

[101]The complaint of unfair dismissal is not well founded and is dismissed. Approved by

Conclusions

[1]There was a preliminary hearing for case management on 23 April 2024 before Employment Judge Roper. The Case Management Orders determined at that hearing, along with the List of Issues was sent to the parties on 23 April 2024 (the “April 2024 CMO”). The April 2024 CMO set out a List of Issues to be decided in the claim.

[2]Following a strike out warning, complaints against seven Respondents were struck out by Employment Judge Roper on 9 May 2024.

[3]A further public preliminary hearing took place on 12 and 13 June 2024 before Employment Judge Smail, who determined that the Claimant was not disabled at the relevant time (as set out in a judgment sent to the parties on 26 July 2024).

[4]A further public preliminary hearing was listed to decide the Claimant’s amendment application, strike out, a deposit order and to consider further case management. This took place on 29 August 2024 before Employment Judge Smail. The Claimant’s amendment applications were dismissed and the Claimant’s claims of sex discrimination relating to August 2020 were found to be out of time. The judgment was sent to the parties on 11 September 2024. In a case management order sent to the parties on the same date (the “September 2024 CMO”), Employment Judge Smail stated that the unfair dismissal issues to be determined were set out in the April 2024 CMO of Employment Judge Roper.

[5]The final hearing took place on 30 April, 1 and 2 May 2025. I reserved judgment and the reserved judgment and reasons were sent to the parties on 31 May 2025 (the “Reserved Judgment”). I dismissed the Claimant’s unfair dismissal complaint.

[6]It is noted that the Claimant points out a typographical error at paragraph 24 of the Reserved Judgement. The paragraph refers to “Mr Cronin”. This is a typographical error and was intended to refer to Mr Cordin.

[7]The Claimant sent an email to the Tribunal which he stated was a reconsideration application on 13 June 2025. There were no grounds for the reconsideration application set out in the email. The email attached the documents before the Tribunal as well as one additional document, document 85. This was a list of issues which the Claimant stated had been sent to the Tribunal on 20 June 2024. He also attached a 97 page document by way of reconsideration application. The format of the document is commentary on each paragraph of the reserved judgment. Where the Claimant simply expresses that he disagrees with a finding of fact, which he does at length, I will not deal with it as a ground of reconsideration.

[8]It is not proportionate to provide a line by line response to the Claimant’s 97 page document. I have summarised the extremely lengthy document into categories of challenge made by the Claimant as follows:a. he disagrees with findings of fact, writing at length about his own position regarding the relevant facts;

b. he alleges there is some form of bias on the basis that: i. the Respondent’s bundle is referred to as the Main Bundle and is used for most of the references, and that the Claimant’s bundle was unfairly ignored; ii. the Respondent is described in language indicating that they were reasonable and the Claimant is not;

c. he complains that without prejudice documents were disregarded. The Claimant says he did not agree to discussions being without prejudice. He describes settlement offers made by the Respondent as blackmail. He says ignoring information about conciliation attempts through ACAS makes the judgment unfair;

d. he says that the timescale for the hearing was too short and he did not have enough time to prepare;

e. the Respondent did not call all of the witnesses needed and this was unfair;

f. not all of the facts/evidence the Claimant considered were relevant were considered by the judge and/or set out in the judgment;

g. the Claimant should have had access to his laptop during witness evidence because the Respondent’s barrister had access to hers throughout. The law on reconsideration

[9]Rules 68 to 70 of the Employment Tribunal Procedure Rules 2024, make provision for the reconsideration of tribunal judgments as follows: “Principles 68.—(1) The 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.

(2) A judgment under reconsideration may be confirmed, varied or revoked.

(3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion. Application for reconsideration 69. Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of— (a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or (b) the date that the written reasons were sent, if these were sent separately. Process for reconsideration 70.— (1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application.”

[10]Under these rules, the Tribunal therefore has discretion to reconsider a judgment if it considers it is in the interests of justice to do so. All case law set out below was determined in relation to previous versions of the Tribunal Procedure Rules, but I consider can be applied to the 2024 rules since the wording is substantially the same.

[11]Under rule 70(2), the judge must dismiss the application if they consider that there is no reasonable prospect of the original decision being varied or revoked. It is a mandatory requirement for a judge to determine whether there are reasonable prospects of a judgment being varied or revoked before seeking the other party's response and the views of the parties as to whether the matter can be determined without a hearing, potentially giving any provisional view, and deciding how the reconsideration application will be determined: T.W. White & Sons Ltd v White,

UKEAT/0022/21

[12]In Outasight VB Ltd v Brown

UKEAT/0253/14

the EAT held (at [46-48]) that the Rule 70 ground for reconsidering judgments (the interests of justice) (which was the predecessor under the Employment Tribunal Rules of Procedure 2013) did not represent a broadening of discretion from the provisions of Rule 34 contained in the replaced 2004 rules. HHJ Eady QC (as she then was) explained that the previous specified categories under the old rules were only examples of where it would be in the interests of justice to reconsider. The rules removed the unnecessary specified grounds, leaving only what was in truth always the fundamental consideration: the interests of justice. This means that decisions under the old rules remain pertinent under the new rules.

[13]The key point is that it must be in the interests of justice to reconsider a judgment. That means that there must be something about the case that makes it necessary to go back and reconsider, for example a new piece of evidence that could not have been produced at the original hearing or a mistake as to the law. It is not the purpose of the reconsideration provisions to give an unsuccessful party an opportunity to reargue his or her case. If there has been a hearing at which both parties have been in attendance, where all material evidence had been available for consideration, where both parties have had their opportunity to present their evidence and their arguments the interests of justice are that there should be finality in litigation. An unsuccessful litigant in such circumstances, without something more, is not permitted to simply reargue his or her case, to have ‘a second bite at the cherry’ (per Phillips J in Flint v Eastern Electricity Board

[1975] IRLR 277

[14]The expression ‘necessary in the interests of justice’ does not give rise to an unfettered discretion to reopen matters. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor

[2016] EWCA Civ 714

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

[1975] ICR 395

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

[1994] ICR 384

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

[15]Rule 70 gives the Tribunal a broad discretion to determine whether reconsideration of a decision is appropriate. Guidance for Tribunals on how to approach applications for reconsideration was given by Simler P in the case of Liddington v 2Gether NHS Foundation Trust

UKEAT/0002/16/DA

. Paragraphs 34 and 35 provide as follows: “34. […] 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 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. Tribunals have a wide discretion whether or not to order reconsideration. 35. Where […] a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.” Assessment of the application under Rule 70(2)

[16]The Claimant has provided a historic list of issues (document 85). That was not relevant to the final hearing. It had been previously determined that the List of Issues to be determined at the final hearing was that set out in in the April 2024 CMO of Employment Judge Roper. Employment Judge Roper’s List of Issues was the List of Issues set out in the Reserved Judgment and the basis of the determinations made.

[17]The appropriate route for the Claimant to take, if he disagrees with findings of fact is to bring an appeal. The role of the Tribunal is to make a determination of its findings of fact, on the balance of probabilities, based on the evidence before it. A reconsideration is not an opportunity to re-open or re-argue the case. It is not an opportunity to have a second bite of the cherry.

[18]The Claimant alleges there is some form of bias on the basis that the Respondent’s bundle is referred to as the Main Bundle and is used for most of the references, and that the Claimant’s bundle was unfairly ignored. There is no substantive basis for alleging that I, as the judge, would be biased against the Claimant. Use of the term “Main Bundle” to refer to a bundle of documents which was agreed between the parties, as opposed to the additional documents provided by the Claimant and which were not agreed by the Respondent is not evidence of bias. It was simply more practically convenient to refer to a bundle which had page numbers, than one that did not. For that reason, where a document was duplicated in both bundles, it was referred to by the “Main Bundle” reference.

[19]The Claimant further alleges bias on the basis that the Respondent is described in language indicating that they were reasonable, and the Claimant was not. The task of the Tribunal in assessing the Claimant’s unfair dismissal complaint was to assess and make findings as to whether the dismissal was within the reasonable range of responses. When the Tribunal determined the Respondent’s conduct was reasonable and the Claimant’s was not in each instance, that is a finding which the Claimant does not agree with, but it is not evidence of bias.

[20]The Claimant complains that without prejudice documents were disregarded. The Claimant says he did not agree to discussions being without prejudice. He describes settlement offers made by the Respondent as blackmail. He says ignoring information about conciliation attempts through ACAS makes the judgment unfair. The policy reason behind “without prejudice privilege” is to allow parties to have frank settlement discussions about the case on the basis that it is “off the record”, which is to say that they are not then referred to in open proceedings. Even if a settlement offer is made and not accepted, and there has been no agreement from the Claimant that this interaction is without prejudice, it is nevertheless covered by without prejudice privilege. ACAS conciliation seeks to resolve the dispute between the parties and is as such covered by without prejudice privilege. Only if both parties consent, can this be put before the Tribunal. No exception to the without prejudice rule has been identified by the Claimant. A bare assertion that a settlement offer constitutes blackmail does not mean that it does from a legal perspective. It is entirely appropriate to disregard without prejudice documents or references to settlement discussions when one party has not consented to lift that privilege being raised. Whether parties engage in ACAS conciliation and attempt to resolve the dispute, or refuse to do so, does not affect the assessment of whether a dismissal was fair or unfair.

[21]The Claimant says that the timescale for the hearing was too short, and he did not have enough time to prepare. The hearing length and dates were notified to the parties on 29 August 2024. Both the length of time to prepare and the length of the hearing were proportionate and reasonable for the matters in question.

[22]The Claimant says that the Respondent did not call all of the witnesses the Claimant wanted to question, and this was unfair. It is for the Respondent to decide which witnesses to call. Ultimately, they called the dismissal decision maker and the appeal decision maker which appear to the Tribunal to be the relevant witnesses in relation to an unfair dismissal claim. It is the Respondent’s decision which witnesses it calls to advance its own case.

[23]The Claimant complains that not all of the facts/evidence the Claimant considered were relevant were set out in the judgment. Given the hearing length and volume of documentation, which vastly exceeded the original page limit given to the parties of 300 pages, I informed the parties that I would only be able to review those documents to which I was referred in the bundle. I did so. I did not refer in the judgment to all of the documents I read: only those I considered relevant to what I needed to determine as set out in the List of Issues. All of the relevant facts in relation to the unfair dismissal decision are covered in the judgment. Matters relating to historic matters were only covered to the extent that they are relevant. The Claimant is misconceived in his view regarding the relevance of those historic matters to his unfair dismissal complaint.

[24]The Claimant complains that he should have had access to his laptop during witness evidence because the Respondent’s barrister had access to hers throughout. The Claimant had access to his laptop at all times (if he wished) other than when he was on the witness stand, when he was only able to refer to a clean copy of the witness statements and bundles. That is the normal procedure. Witness evidence is intended to be the evidence a witness can give from their own recollection. There is no need to refer to a laptop in this regard. This does not affect the fairness of the hearing.

[25]As set out in Liddington, a 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 adopting points previously omitted. Any asserted error of law is to be corrected on appeal.

[26]Having carefully considered the Claimant’s application and bearing in mind the importance of finality in litigation and the interests of both parties, I am not satisfied that there is any reasonable prospect of the Judgment or any part of it being varied or revoked. Approved by