Mr A White v Lidl Great Britain Ltd: 6003109/2025
JUDGMENT
[1]The claimant’s claim that he was unfairly dismissed is not well founded and is dismissed.REASONS
[1]By this claim the claimant brings a claim of unfair dismissal The respondent contends that the claimant was fairly dismissed by reason of misconduct.[2]The tribunal has heard evidence from the claimant, Mr Darren Bartholemew, Mr Carl Rudge, and Mr Max Jones, and read the witness statements of Mr Nicholas Stevens and Ms Sophie Holland. For the respondent evidence has been given by Ms Selina ---1--- Walter (Area Manager), and Ms Kate Watson (Regional Head of Sales). In addition there is a bundle of 344 pages to which I have been taken and considered. Summary[3]The dispute in this case turns on information the claimant entered onto the respondent’s electronic system, altering information previously entered by Customer Assistants. There is no factual dispute as to what the claimant did, the disputes (as set out in greater detail below) turn on the surrounding circumstances and the inferences that could reasonably be drawn as to the reasons for the claimant having done so; and the contention that others who had done the same or similar things had not been dismissed. The respondent contends that it reasonably considered the actions to be gross misconduct justifying summary dismissal. The claimant contends that he was either acting on his Store Manager’s instructions or at very least reasonably understood that he was doing so and that his dismissal was in the circumstances unfair.Background
[4]The claimant was employed by the respondent as Deputy Store Manager at its Teignmouth Store. The events which led to his dismissal occurred in July 2024. The respondent’s contractual pay provisions allow Customer Assistants (CAs) to be paid for each minute they work, the times being recorded by clocking in and out using a fob. In addition to start and end times of shifts, this also applies to breaks and allows break times to be monitored to ensure both that staff are paid correctly, and compliance with the Working Time Regulations.[5]In 2022 new electronic recording systems were introduced. Working times are recorded by a system PZE, which consists of in store terminals via which staff record clocking in and out times by means of a fob. PEP 2.0 records PZE data against the planned schedule or rota. ESS (Employee Self Service) is a system by which staff can record times if they are not in store or do not have access to a functioning PZE terminal. MSS (Manager Self Service) interacts with PZE and records working times entered or approved by management. Via MSS managers have access to the system and are able to enter or alter the clocking in and out times, with the system showing where this has happened. There are a number of circumstances in which a manager entering information onto the system in this way is entirely legitimate. An example given in evidence is where a CA finishes a shift without clocking out. If at the end of the day the manager is not able to contact them s/he may enter a time representing the best estimate as to the time the customer assistant finished, for example the end time of the planed shift, and the CA is then contacted and is able to correct the time via ESS if it is incorrect. The reason the manager’s actions in those circumstances is legitimate is that the “day end run” requires that all the time information is recorded on the day; if it is not the “day end run” cannot be completed. The information is provided to the managers by means of a list of employees colour coded red or green. If at the day end run the entry for the CA is coloured green it means all the necessary information has been provided as to start and end times, and start and end of break ---2--- times. If the entry for a CA is coloured red one or more of the time entries is missing. In order to allow the day end run to be completed it is permissible for the manager to enter what are in effect placeholder times, subject to the later confirmation or correction by the CA. It is now accepted, although the claimant contends that he did not know at the time, that completing the day end run does not require the information to be accurate, as it can subsequently be changed, nor that there are no break violations. It simply requires the relevant information to have been entered.[6]The respondent contends that whilst managers have access to, and can enter information and correct entries for a legitimate purpose, such as that set out above; what is not permitted is to deliberately falsify information on the system for an illegitimate purpose. To do so falls within paragraph 2.6.4 of the respondents disciplinary policy which provides for summary dismissal for cases of gross misconduct and includes as examples of gross misconduct “(c) falsification, manipulation or deliberate tampering of a company record(s)”.[7]The respondent submits that the disciplinary effect of falsification of the records was reinforced by WMP, which is the means by which information is provided for managers. The WMP for the w/c 16th November 2023 includes the following entry – “ Breaks should only be adjusted where an error in clocking in has occurred, not to eradicate genuine break violations. Infringements of this process could be considered gross misconduct.” The respondent submits that if there were any doubt this makes absolutely clear when corrections to break times can and cannot be made. The claimant’s evidence is that he has no recollection of ever seeing or reading this.[8]Break Violations – The respondent is necessarily required to ensure compliance with the Working Time Regulations, and to ensure that employees take the minimum breaks required by the WTR depending on the length of their shift. By the summer of 2024 the respondent’s evidence is that break violations,(i.e. employees taking shorter breaks than required by law), was a significant problem and that the region was one of the worst performing in the country. Accordingly managers were informed or reminded that it was their responsibility to ensure that appropriate breaks were taken This is the context in which the July management meeting which is central to the dispute in this case took place (see below).[9]The allegation against the claimant is that on three separate occasions on 8th and 17th July 2024 he changed entries on the system in each case in relation to break times, twice for CA Svitlana Potes, and once for CA Bethany Iveson. On each occasion each of the Customers Assistants had already accurately clocked out and in at the start and finish of the breaks they had taken and those times had been recorded accurately. There was therefore, no ostensible reason for the claimant to have altered any of the information entered by the CA’s themselves. However on each occasion the claimant altered the end time of the breaks making it appear that the CAs had taken longer breaks than they had. On each occasion, the actual correctly recorded breaks as entered by the CAs themselves were shorter than the minimum required by the Working Time Regulations; and the effect of the claimant’s alteration of each of the entries was record a longer break which was WTR compliant avoiding a ”break violation” being recorded, and, unless corrected, to cause the CAs ---3--- to be underpaid for time which they actually worked. There is no dispute that the claimant had done this. Events Leading to Dismissal[10]Investigation - The potential break violations were identified by Ms Walter, and she asked Nicholas Stevens the Store Manager to investigate. He interviewed the claimant on 31st August 2024. He records that the claimant “..admitted altering breaks to ensure violations not flagged”; and that there was a case to answer, “However could be a misconception of communication”. In the meeting notes the claimant refers to the store having been flagged by the Area Manager numerous times for break violations; and that the management team had discussed the importance impressing on staff the importance of taking full breaks. He stated that when he did change a break he would follow up with the individual concerned to take back the time by taking a longer break or altering clocking in and out times to balance it.[11]Disciplinary Hearing- By a letter dated 16th September 2024 the claimant was invited to a disciplinary meeting on 19th September in respect of the three allegations of manipulation of company data in altering the CAs break times in order to avoid break violations, which were potentially considered to be gross misconduct and which could result in dismissal.[12]The hearing was held by Ms Walter. The claimant did not dispute that he had altered the break times as alleged. During the hearing they discussed the various systems, and the claimant stated that at the July management meeting it was discussed that they had to make sure that PZE and day end would run, and that he understood that the PZE/ day end system would not run if there were break violations; and therefore that they had to be corrected, which he had done. After he had done so he had discussed it with the CAs and told at least one to take the time back as an additional ten minutes on one of her shifts. Ms Walter took the view that the PZE/day end run explanation was not correct, (as set out above all that was required was that start and end times were entered, whether they did or did not demonstrate break violations had no effect on the day end run), which the claimant accepted he understood at the time of the disciplinary hearing, but had not known at the time of the alteration of the entries. He stated that no one had instructed him to change break times to avoid break violations, but that that was what needed to be done.[13]The claimant was invited to an outcome meeting on 27th September at which he was informed that he was being summarily dismissed for gross misconduct. This was confirmed in a letter of the same date. Ms Walter stated that she did not believe the claimant’s explanation as to the reason why he had made the alterations, as the claimant who had been operating the system for two years must have known that this explanation was not true; and that the break time manipulation / falsification amounted to gross misconduct for which he would be summarily dismissed.[14]Appeal - The claimant appealed and set out a number of grounds which are in summary :- ---4--- i) He contends that the original and/or disciplinary stage investigations were not full or fair as the others present at the July meeting, and the two CAs were not interviewed; and that Mr Stevens should not have conducted the investigation; ii) He had been treated more harshly and inconsistently with Max Jones; and other comparable instances in Torquay, Dartmouth and Oakehampton. He was not aware he should not have done this and he was acting on his managers instruction. iii) The disciplinary outcome was too severe given that it was “such a small violation of procedure”. He accepted that he had not been entirely explicit in the investigation or disciplinary meetings as to what he was now advancing as Mr Stevens instruction, but this was because he was worried about the potential repercussions for Mr Stevens and did not want to” drop him in it”. iv) He had not been adequately trained in the use of the systems ; v) That his long service and mitigation had not been sufficiently taken into account.[15]He supplied statements from Max Jones and Sophie Holland, Svitlana Potes and Bethany Iveson.[16]The hearing was conducted by Ms Watson on 30th October 2024; and in effect the claimant repeated, and in many case simply read out the points made in his grounds of appeal. Following the meeting Ms Watson interviewed Mr Stevens, Timothy George , Bethany Iveson, Svitlana Potes, Karen Howard, Max Jones, Sophie Holland, and James Harding. In respect of the central issue of whether an instruction to falsify break times had been given, Mr Jones supported the claimant asserting that a specific instruction had been given by Mr Stevens; Mr Stevens denied ever giving an such instruction; Ms Holland stated that the issue of falsification of break times had in fact been raised by the claimant saying that that was how he did it, and it was not expressly stated by Mr Stevens that it could not be done in that way ; Mr Harding stated that he did not hear any instruction to amend break times to avoid break violations.[17]By a letter dated 13th November 2024 Ms Watson set out the appeal outcome. The appeal was not upheld. She concluded in summary: i) The investigation at the disciplinary stage was sufficient particularly as the claimant had never alleged that any instruction to manipulate break times had been given by Mr Stevens. She did not accept that Mr Stevens had given the instruction. Had such an instruction been given she concluded that she would have expected evidence that managers other than the claimant and Mr Jones had done so, whereas they were the only ones who had done so and the only ones asserting that Mr Stevens had given any such instruction. ii) She set out a table of the alleged comparators who the claimant asserted had acted as he had and the reasons for concluding that they were not genuinely comparable; iii) That the amendments were made for the purpose of concealing break violations during the claimants shifts and that there was personal gain to him for “feigning compliance”. iv) She did not accept that lack of training could justify deliberate falsification. ---5--- v) Following the claimant’s assertion that he had never done the same previously that she researched and discovered that he had done the same thing twice before on 8th March 2024 and 1st April 2024.[18]Claimant’s evidence – As set out above, the claimant has called three witnesses and invited the tribunal to consider the written evidence of two others. The evidence goes to two of the central issues in the case; what was or was not said at the meeting in July held by Mr Stevens; and the issue of whether the claimant was treated more harshly than appropriate comparators. I bear in mind, as explained to the parties at the start of the hearing, that it is not my role to act as a second stage appeal or to substitute my view for those of the respondent; and the decision must be based on the information that was before the respondent at the time. The claimant essentially submits that the evidence is relevant as it demonstrates that had the respondent conducted a full and thorough investigation they would, or should, have concluded that he had been given the instruction by Mr Stevens as he alleges and/or that he was being unfairly treated in comparison with other managers.[19]July 2024 Meeting - In his witness statement the claimant’s evidence is that he understood not simply that break violations should be monitored at the end of each day, but that any “anomalies should be corrected to ensure compliance..”, which included amending breaks to avoid break violations which is what he had done.[20]Mr Stevens - Mr Stevens was not called to give evidence, but the claimant has tendered a witness statement from him. The claimant contends that his evidence at least supports the contention that there may have been a misunderstanding as to the instructions given.[21]Mr Stevens was interviewed as part of the appeal process by KW on 31st October 2024. He stated that he had never himself “adjusted anyone’s times, once its fobbed in I don’t mess with it”. He stated that there had been a stern meeting in July about break violations, and that his instruction to managers was for colleagues to be spoken to one to one. He denied ever having instructed anyone to alter a colleague’s break to avoid a break violation in the reporting; and that he had never asked or instructed anyone to do so. In his witness statement he appears to accept that a misunderstanding may have arisen not from anything said in the meeting, but from a WhatsApp message he had sent; and that the purpose of his instruction was that break compliance should be reviewed at the end of each day, not that any manager should alter or amend break records; but he acknowledges that a misunderstanding of the message was possible. The message that he is referring to reads “ Every close from today the evening manager must check day end for break violations, paying particular attention to new starters as P.. and S.. seem to be an issue”.[22]There are a number of points to make about his evidence: i) He has consistently denied ever giving any instruction to alter or amend times already entered by staff; ---6--- ii) He has apparently accepted that his Whatsapp message was open to misinterpretation, but does not explain how or why he considers it is open to misinterpretation or how he has reached that opinion; iii) In any event that this is opinion evidence, not evidence of fact; iv) The respondent has had no opportunity to challenge or cross examine him as to this evidence. v) It is not the claimant’s evidence that his actions arose from a misunderstanding of the WhatsApp message, but because he received a direct instruction from Mr Stevens in the meeting.[23]In my judgement it is impossible in the circumstances to place any weight on the written evidence of Mr Stevens; which does not in any event support the claimant’s version of events.[24]Mr Max Jones – Mr Jones’ oral evidence to the tribunal was absolutely explicit that Mr Stevens had in the meeting issued an instruction that break violations should be monitored and that managers should correct the times entered so that the system would no longer show the violation having occurred; and an instruction that managers who knew how to do this should instruct those who did not as to how it should be done. Mr Stevens stated that any manager who did not do this would be the subject of disciplinary action and that this instruction had come from the Area Manager.[25]This had never been put to SW, perhaps because it was not evidence set out in his witness statement, in which he stated in more neutral terms that “I did not understand from that meeting that managers were prohibited from correcting break anomalies or that such actions could lead to disciplinary action and, ….. It was my understanding that the store manager… had instructed managers to ensure that working time anomalies were addressed so that day end processes could run correctly. “ He too had been interviewed by as set out above as part of the appeal. In the meeting , he is recorded as saying that someone suggested that it would be quicker and simpler to delete and re-enter break times as long a you could verify this was worked with a colleague; and later that he understood there was an instruction from NS to alter break times.[26]The respondent disputes the evidence as to the instruction being given by Mr Stevens, as it is: i) Not the evidence of Mr Stevens, and which he specifically denies, which is curious as both witnesses were called or witness statements tendered by the claimant, but clearly they cannot both be telling the truth; ii) The respondent submits for the reason given below in respect of the comparison evidence that Mr Jones evidence should be treated as having no credibility, or at very least treated with extreme caution.[27]Sophie Holland - Somewhat curiously the claimant equally relies on the evidence of Ms Holland, which is not that any instruction was given by Mr Stevens, but that the claimant himself had raised or suggested altering break times to avoid break ---7--- violations, and that Mr Stevens had not expressly forbidden it. This is odd as it does not accord with the claimant or Mr Jones account, or Mr Stevens account.[28]Again the respondent has had no opportunity to cross examine Ms Holland and the tribunal has not seen or heard her evidence to assist in an assessment of her credibility and reliability.[29]Looked at overall the evidence called by the claimant as to what was said at the meeting is curiously internally contradictory. He has called evidence from three different witness each of whom gave different accounts of what was said at the meeting. On any analysis even on the basis of the claimants own evidence there is absolutely no consistency as to what is alleged by the claimant to have been said by Mr Stevens. In my judgement there are two consequences that arise from this. Firstly the claimant himself has called evidence which is entirely consistent with the evidence each witness gave to Ms Watson during the appeal; and secondly that it is impossible on that basis to draw any conclusions that had Ms Watson made any further enquires that she would have reached any different conclusions.[30]Comparison Evidence – The evidence of Mr Bartholomew and Mr Rudge and Mr Jones were tendered as evidence of differential treatment, and each gave oral evidence.[31]Mr Bartholomew -. Mr Bartholomew’s evidence was that he had never altered break times to avoid break violations. In his witness statement he describes what the respondent asserts is the legitimate process of correcting anomalies where colleagues could not be contacted so as to allow processes to be run. He had been investigated in relation to an anomaly, his account was accepted and no action was taken. The significance of his evidence appeared to be, according to Mr Bartholomew, that in the investigation a statement was prepared by his store manager which he was asked to sign before being given the opportunity to review or amend it which he contended was procedurally inappropriate, despite the fact that no action was taken against him.[32]In so far as it is relevant there is in my judgement no genuine comparison with the allegations against the claimant and the investigation involving Mr Bartholomew, given that he expressly denied ever acting in a similar way to the claimant.[33]Mr Rudge - Similarly in the case of Mr Rudge he was investigated for altering break time including in relation to a colleague RF. In the course of the investigation he also stated that he had altered the break time to avoid a break violation because the colleague had in fact taken the full break and he was correcting it to enter he correct information, not to falsify correct entries.[34]In so far as it is relevant there is in my judgement no genuine comparison with the allegations against the claimant and the investigation involving Mr Rudge, as again he expressly denied ever acting in a similar way to the claimant ---8---[35]Mr Jones – Mr Jones evidence is that he had acted identically to the claimant but had received a significantly lesser sanction. The sequence of events is that no action was originally taken against him for altering break times, but during the course of the investigation Ms Watson concluded that it should be re-investigated. During the investigation he accepted that he had altered the break times but that he had done so because the colleague in question had taken a twenty minute break and then gone outside to vape. She had taken the full break but had clocked back in early before going outside. The information was corrected to reflect the fact that there had in fact been no break violation. In cross examination it was put to him that this was the opposite of what was alleged against the claimant. He accepted this but somewhat unexpectedly stated that he had been lying in the investigation and concocted the explanation to avoid the fate of the claimant. He appeared to suggest that the case was comparable in that there was insufficient investigation of the claimant’s case, and insufficient investigation of this, albeit in his case a further investigation would have discovered that he was lying.[36]The respondent submits that this necessarily means that his credibility is, to put it at its lowest, seriously in issue.[37]Again it follows that all three of the witnesses adduced as evidence of comparison in fact asserted at the time, albeit untruthfully in Mr Jones case, that they had altered break times to enter the correct information, not to falsify entries. It follows that in my judgement there is nothing to suggest that they are genuinely comparable incidents, or that had any further investigation taken place that Ms Watson would or should have concluded that they were comparable. Conclusions PrinciplesConclusions
[38]The principles I am required to apply are not in dispute. As this is a misconduct dismissal, which is a potentially fair reason for dismissal within s98(2) ERA 1996 there are four questions the tribunal must answer: a) Has the respondent satisfied the burden of proof in demonstrating that the genuine reason for dismissal was a belief that the employee had committed the misconduct alleged? If it does the tribunal must ask whether: b) The respondent carried out a reasonable investigation into the allegations; c) Drew reasonable conclusions as to the fact of the misconduct having occurred; d) Reasonably concluded that dismissal was the appropriate sanction.[39]In answering those questions the tribunal must not substitute its own view or opinion for that of the respondent; and in determining what is reasonable must at each stage apply the range of reasonable responses test (see J Sainsbury plc v Hitt [2003 ICR 111). ---9---[40]There is no dispute that both Ms Walter and Ms Watson dismissed the claimant , and dismissed his appeal, on the basis that they genuinely believed that he had committed the misconduct alleged. The issues therefore relate to the fairness of that dismissal and the “Burchell” questions as set out below.[41]Procedural errors – The claimant submits that there was a procedural error in the failure to inform him of his right to be accompanied and/or call witnesses at the hearing on 27th September 2024, which was in breach of the Acas code. He did not understand that the hearing had concluded, but that it had been adjourned, that Ms Walter would further investigate what had been said at the July meeting and that he would have the opportunity to call evidence. The respondent submits simply that the disciplinary hearing had concluded and that the claimant was as a matter of courtesy invited to an outcome meeting. They could perfectly fairly , if they had wished, simply have sent an outcome letter; and there is no breach of the code in not informing him of any right to be accompanied at an outcome meeting. Even if it is a procedural error it does not affect the fairness of the dismissal as the decision had necessarily already been made. .[42]The claimant also contends that after the appeal hearing Ms Watson investigated his assertion that he had never previously manipulated breaktimes before, and discovered that he had done so twice. The claimant asserts that at least in part he was dismissed because of disciplinary allegations which were never put to him and in respect of which he had never had the chance to answer. The respondent submits that he was not dismissed because of the new allegations, but squarely and solely because of the original allegations, and that the claimant cannot complain that Ms Watson investigated his assertions, particularly given that the evidence before her from at least one witness was that it was the claimant himself who had suggested how to manipulate the system (and indeed a witness who the claimant himself now relies on), and discovered that in this respect his assertion was untrue. It follows that this was neither procedurally or substantively unfair.[43]In my judgement the respondent is correct as to both these assertions; and I cannot identify any procedural error which had any bearing on the outcome or the fairness of the dismissal.[44]Investigation – The claimant contends that the investigation was flawed in a number of ways. Firstly the initial investigation was conducted by Mr Stevens who is the manager he alleges gave him the instruction, and that for him to investigate involves a conflict of interest. The respondent submits that at the time the claimant did not object to Mr Stevens or make any allegation that he was acting on Mr Stevens instructions, which was an allegation that only arose at the appeal stage. Secondly the claimant alleges that during the disciplinary meeting, although he did not specifically allege that Mr Stevens gave him the instruction, he spoke about the meeting in early July 2024 as the meeting at which he had understood that PZE/ day end run would not work unless break violations were removed, but that Ms Walter did not interview anyone else at the meeting. Given that Mr Stevens had in the investigation report referred to the potential for a misunderstanding arising from ---10--- miscommunication, that Ms Walter should have conducted an enquiry as to what was said at the meeting and interviewed those present.[45]The respondent contends that this was entirely unnecessary. The claimant had admitted the acts amounting to misconduct and had explicitly stated that he had not been given any instruction by anybody to do so. Ms Walter was entitled to use her experience to conclude that the explanation given by the claimant was not true, and in the circumstances there was nothing to investigate, or at very least the decision not to make further enquires in respect of the meeting fell well within the range open to Ms Walter.[46]Again in my judgement the respondent is correct, and in my judgement both Mr Stevens original investigation and the investigation conducted by Ms Walter in the disciplinary hearing itself, fall clearly within the range reasonably open to the respondent given that the facts were not in dispute and the claimant had not at either stage advanced the defence he now relies on. For completeness sake the claimant did not in any event at either stage rely on any explanation that he had misunderstood an instruction given by Mr Stevens, but that he understood that to complete a day end run it was necessary to alter breaktimes to ensure compliance, which Ms Walter concluded could not be true, as the claimant must have known from his previous experience hat that was simply not correct.[47]Misconduct – The respondent submits that given that it has never been in dispute that the claimant did alter the break times the factual conclusion that he had done so is irrefutable both at the disciplinary and appeal stage. The only issue was why he had done so which is relevant to the issue of sanction.[48]In my judgment this is inevitably correct.[49]Sanction – The central issue is as to sanction. The claimant contends that the sanction was excessive essentially for the reasons set out in his appeal letter. As the defence to the claims was different at the disciplinary and appeals stage it is necessary to deal with them separately.[50]Disciplinary – At the disciplinary stage there was no dispute that the claimant had committed the misconduct, and had advanced an explanation that Ms Walter did not accept was true. Ms Walter concluded that he had deliberately committed an act of misconduct falling squarely within the definition of gross misconduct in manipulating or falsifying the records. In my judgement those conclusions were necessarily rationally and reasonably open to her, as was the conclusion that dismissal was the appropriate sanction.[51]Appeal – At the appeal stage the claimant advanced the different defence set out above, that he had been explicitly instructed to falsify the record. Again there was no dispute that as a matter of fact he had committed the misconduct. The issue for Ms Watson was, therefore, whether that explanation was true, and even if it were whether it vitiated or mitigated the falsification of the records. Following the meeting and the further investigations she was faced with three different versions of what was ---11--- said at the meeting, firstly that Mr Stevens had given an explicit instruction to falsify break times, secondly that Mr Stevens had not given an explicit instruction to falsify break times, and thirdly that the suggestion of falsifying break times had come from the claimant himself. By definition she had to decide which she accepted, and specifically whether she accepted the assertions of the claimant and Mr Jones. Her conclusion that she did not accept their contentions, in part because no other manager had in fact done so, is in my judgement a rational conclusion that necessarily reasonably open to her on the information before her.[52]The second basis for criticism of Ms Watson’s decision is that she failed to conclude and/or give sufficient weight to the assertion that the claimant had been treated more harshly than others who had done the same thing. In my judgement it was rationally open to Ms Watson to conclude that the incidents were not in fact comparable, which for the reasons given above is a conclusion supported by the evidence the claimant himself has called before the tribunal.[53]Conclusion – In my judgement it follows that the decision to dismiss fell within the range reasonably open to the respondent; and his claim for unfair dismissal must be dismissed.Conclusions
[1]On 14th / 15th January 2026 I heard this claim and dismissed the claimant’s claim for unfair dismissal. He is not seeking a reconsideration of that decision; but contends that the judgment has failed to consider his claim for fifty seven hours of unpaid overtime.[2]He submits that there is evidence in the bundle of Managed Banked Hours which demonstrates that there are fifty seven hours overtime for which he has not been paid. He has set out in his Schedule of Loss a claim for £1064.65 for these hours. The basis of the application is that if he is not paid for these hours the respondent will ---1--- Case No: 6003109/2025 have been unjustly enriched and that the interests of justice require the payment of those sums.[3]The respondent resists the application on the basis that the only claim before the tribunal was for unfair dismissal which has been determined by the tribunal. There is the ET1/claim form no claim for unpaid wages or unlawful deduction from wages. The claimant cannot use a reconsideration application to pursue a claim that was not before the tribunal. In any event as a salaried employee he was not entitled to overtime and there is no contractual basis for the claim. Even if it is open to the tribunal to consider this claim, which for the reasons given above it contends that it cannot, the claim would be bound to fail.[4]General Power - Rule 70 of the ET Rules gives the tribunal a general power on reconsideration to confirm, vary or revoke the original decision where it is in the interests of justice to do so. However that does not give the tribunal a completely freestanding discretion to reconsider or vary/set aside any judgment In Outasight VB Ltd v Brown 2015 ICR D11, EAT, HHJ Eady QC accepted that the wording ‘necessary in the interests of justice’ allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’.[5]Iny judgement the respondent is correct that this claim was not one before the tribunal; and that the only claim was that for unfair dismissal , which has been dealt with and in respect of which there is n0 application for reconsideration. In the circumstances an application for reconsideration, on the basis of the failure to deal with a claim which was not before the tribunal is itself bound to fail and the application is dismissed.