Ms T Nembhard v Royal Borough of Greenwich: 6017834/2024
EMPLOYMENT TRIBUNALS
Case No 6017834/2024
Between
Ms. T. NembhardClaimantRoyal Borough of Greenwich Considered at: London South Employment Tribunal By: Employment Judge SudraRespondent
Before
Employment Judge SudraDate 13 April 2026
REASONS
[3]The Claimant and Respondent had produced a joint bundle for the Preliminary Hearing before me on 7th April 2026. The Claimant stated that MRI scan results from 8th January 2020 would show that she was a disabled person under s.6 of the Equality Act 2010 with the impairment of endometriosis. 2 of 5[4]The Claimant also stated that she was unable to disclose the MRI scan results relied upon as she did not have them and that the relevant NHS trust had not released them to her.
Relevant Law
[5]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. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v. Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: ‘…the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v. Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v. Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.’[6]Similarly, in Liddington v. 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P (as she then was) said in paragraph 34 that: ‘a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’ 3 of 5[7]In common with all powers under the 2024 Rules, reconsideration under rule 70 must be conducted in accordance with the Overriding Objective which appears in rule 3, namely, to deal with cases fairly and justly. Achieving finality in litigation is part of a fair and just adjudication.[8]Reconsideration is not a means by which to have a second bite at the cherry, or is it 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.[9]Tribunals have a wide discretion whether or not to order reconsideration. 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.
Conclusions
[10]Whilst the Claimant’s reconsideration application consist of five pages, it is difficult not to deal with it in a concise manner.[11]The nub of the Claimant’s application is that the Tribunal made a decision on the evidence available before it when it should have found in the Claimant’s favour based on the results of an MRI scan which the Claimant herself does not possess.[12]It is challenging to identify the logic in such an argument. A Tribunal can only make a decision on the evidence before it and not on evidence which a party says they know exists but which they do not have or are unable to produce.[13]The Claimant says that she made a data subject access request to Guy’s and St. Thomas’ hospital and that the hospital failed to comply with it resulting in the 4 of 5 Claimant making a complaint to the Information Commissioner’s Office. This may or may not be the case but what this information does not do is explain how a Tribunal could make a decision based on evidence neither it (nor the Claimant) had available.[14]As the Tribunal explained to the Claimant, her substantive complaints remain intact and the only effect of the Tribunal’s decision is that some of her allegations, pre-December 2023, could not be allegations of disability discrimination but, as they have been pleaded in the alternative, would continue as allegations of race and/or sex discrimination.[15]For all of the above reasons, the Claimant’s application is refused in its entirety.