Mr L Thompson v Cepac Ltd and Page Outsourcing UK Ltd: 6019060/2024
JUDGMENT
(1) The application for Reconsideration of the Judgment sent to the parties on 29 April 2026 is refused because it has no reasonable prospect of success (Rule 70(2), Employment Tribunal Procedure Rules 2024).REASONS
[1]The claimant applies for reconsideration of the Tribunal’s Judgment dated 29 April 2026, by which the claim was struck out and a costs order made. The application is extensive and advances multiple grounds, including alleged errors of approach to causation, failure to consider the disability context, proportionality, Rule 47, portal notification, respondent conduct, apparent pre-judgment and costs.The Law
[2]Rules 68 to 71 of the Employment Tribunal Procedure Rules 2024 provide as follows: RECONSIDERATION OF JUDGMENTS 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.(4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice.(5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application. Reconsideration by the Tribunal on its own initiative 71. Where the Tribunal proposes to reconsider a judgment on its own initiative, it must inform the parties of the reasons why the decision is being reconsidered and the judgment must be reconsidered (as if an application had been made and not refused) in accordance with rule 70(3) to (5) (process for reconsideration).[3]Whilst the discretion under the rules is wide under the ‘interests of justice’ test, it is not boundless; it must be exercised judicially and with regard, not just to the interests of the party seeking the review, but also to the interests of the other party and to the public interest requirement that there should, as far as possible, be finality of litigation: see Flint v Eastern Electricity Board [1975] ICR 395 at 401, per Phillips J, at 404.[4]The claimant’s submissions are detailed and carefully expressed. However, when properly analysed, they do not disclose any arguable error of law, procedural unfairness, or material irregularity capable of satisfying the threshold for reconsideration. The principal themes of the application may be addressed as follows. Causation, asymmetry and disability context[5]The claimant asserts that the Tribunal failed to engage properly with the alleged causal relationship between his conduct and disability-related distress, respondent non-compliance, and procedural stressors.[6]That submission is not well founded. The Judgment expressly recognised the claimant’s reliance on disability context and vulnerability. Those matters were taken into account. The Tribunal was required, however, to assess whether that context rendered the claimant’s conduct acceptable, proportionate, or otherwise sufficient to preclude strike-out. The tribunal concluded it did not.[7]That conclusion represents a judgment call squarely within the Tribunal’s discretion. Disagreement with it does not disclose an error, nor does it show that the Tribunal ignored the case advanced.[8]Similarly, the assertion of asymmetrical treatment of the parties amounts to a challenge to evaluative conclusions reached on the evidence. The Tribunal did not accept that any alleged respondent conduct justified or explained the scale and persistence of the claimant’s conduct. That was a finding open to the Tribunal and does not provide a basis for reconsideration. Rule 47 and non-attendance[9]The claimant submits that the Tribunal approached Rule 47 too narrowly by focusing on the absence of hearing-specific medical certification. The Judgment does not support that characterisation. The Tribunal considered the material before it and concluded that there was no sufficient evidential basis to justify non-attendance at the hearing. The Tribunal was entitled to reach that conclusion. The postponement application had already been refused. The question was whether it was appropriate to proceed in the claimant’s absence. The Tribunal concluded that it was. The reconsideration application does not demonstrate that the Tribunal misdirected itself as to the applicable test or ignored relevant material. Portal access and notice of hearing[10]The claimant challenges the Tribunal’s reasoning concerning notice of the hearing and portal access in relation to the January 2025 hearing. That was only one of the hearings considered. Whether the claimant did know or should have known about that hearing does not answer the question as to whether he could or should have attended the other three hearings; and in light of his non-attendance, what the appropriate action was on the day of the hearing. The application discloses no arguable grounds for reconsideration on this point. Respondent order breaches and proportionality[11]The claimant contends that respondent non-compliance was insufficiently weighed and that lesser sanctions were not adequately considered. The Judge considered the alleged respondent conduct and decided it was not made out and nor could it justify the claimant’s response. The Tribunal considered whether strike out was proportionate, which included consideration whether a lesser sanction was appropriate. On the basis of the reasons given, a lesser sanction clearly was not appropriate, due to the scale of the unreasonable, scandalous and vexatious conduct and the length of time over which it had taken place. That was an evaluative decision reached after prolonged case management and repeated warnings. The reconsideration application does not identify any failure to consider reasonable alternatives, nor what such reasonable alternatives might have been. It merely expresses disagreement with the conclusion reached. Alleged pre-judgment or adverse framing[12]The claimant relies on comments made by another Employment Judge at a prior stage and submits that these infected the later determination.[13]That submission is misconceived. Case management observations do not amount to pre-judgment, and the claimant identifies no basis on which a fair-minded and informed observer would conclude that the Tribunal approached the strike-out decision with a closed mind. The reasoning in the Judgment stands on its own analysis and findings. If Judge James uses similar wording to that used by Judge Smith, that is because he agrees with Judge Smith’s conclusions about the nature of the claimant’s substantive claim; not because he considered himself in any way bound by them. Costs[14]The claimant challenges the costs order on multiple grounds, including proportionality, the compensatory principle, alleged respondent-caused costs, and means.[15]The Judgment expressly directed itself to the correct legal principles. The Tribunal considered the claimant’s representations as to means and was entitled to decide that his means should not be taken into account. That was a reasonable exercise of the express discretion provided by the rules. The fact that the Tribunal reached a conclusion with which the claimant disagrees, does not render the reasoning flawed. No error of approach to costs is disclosed. Overall conclusion[16]The claimant’s application amounts, in substance, to an attempt to re-litigate matters already decided and to challenge evaluative judgments with which he disagrees. It does not identify any error of law, procedural irregularity, or material unfairness capable of satisfying the interests of justice test.[17]Accordingly, the application has no reasonable prospect of success and is refused under Rule 70(2).