Mr N W Khan v Tesco plc: 6026992/2025
JUDGMENT
The Claimant’s application dated 11 February 2026 (referred on 5 March 2026) for reconsideration of the judgment sent to the parties on 30 January 2026 is refused.REASONS
There is no reasonable prospect of the original decision being varied or revoked, for the following reasons.[1]The Claimant’s reconsideration application raised the following grounds:(i) failure to consider the absence of evidence (the email)(ii) the dismissal was procedurally unfair as the disciplinary hearing proceeded in his absence and without ‘medical clarification’(iii) there was a refusal during this hearing to allow the Claimant a break(iv) corroborative enquires were not undertaken and at the same time there was an adverse inference drawn because of the Claimant’s lack of an alternative explanation for what had happened(v) it was in the interests of justice to reconsider given the case involved career ending allegations of a long serving employee.[2]The judgment identified at the outset that a key part of the Claimant’s case was his position that he never received the email (para 4). Paras 24 and 45 then dealt with the issue of whether there was a reasonable investigation by the Respondent without the Respondent providing the email to the Claimant. There was no failure to understand that this was a key part of the Claimant’s case or a failure to consider the absence of the email. The Respondent reasonably concluded that the email had been replied to, with some answers giving the Claimant’s email address and phone number (para 16) and some being at a time the Claimant was logged into the Medallia app (para 17). The Claimant seeks to re-argue his case because he disagrees with the outcome, but a reconsideration is not a second opportunity to re-argue the case and have a second bite at the cherry.[3]The judgment at paras 26-28 and 50 addresses the issue of the disciplinary hearing taking place in the absence of the Claimant (but with his written answers) and without there having been an OH referral. There was no unfairness just because the Claimant was advised dismissal was a possible outcome. The Tribunal did not fail to address the issue of the disciplinary hearing, even if the Claimant disagrees with the outcome. The Claimant seeks to re-argue his case.[4]The Claimant started his evidence under cross examination around 11.28 am on the second day and was reminded before he started that he could ask for breaks. After some initial difficulty in getting the Claimant to answer the question I advised the Claimant that he needed to answer the questions put to him; I advised his representative that he could keep a note of points he wanted to make later on arising from the Claimant’s evidence. At around 11.40am, after a series of further questions which the Claimant did answer, his representative asked for 5 minutes with the Claimant. The Claimant had not asked for a break and his representative was not asking for the Claimant to be able to take a break on his own, his representative was asking for 5 minutes himself with the Claimant. It was only a few minutes into the Claimant’s evidence and there had been a series of questions he had been able to give short answers to which addressed the question he had been asked. He was not visibly struggling and it was not the case that he might be getting tired as he had only been giving his evidence for a few minutes. The context of the request was the answers in evidence the Claimant was giving. A representative is not permitted to discuss the person’s evidence with them while they are giving that evidence; they should not discuss their evidence with anyone or have any other discussions which might influence the rest of their evidence. The right to representation does not give rise to a right to consultation during the course of evidence, and the risk was that the Claimant’s representative was going to discuss his evidence with the Claimant. There was no failure to make a reasonable adjustment for the Claimant because a reasonable adjustment was not 5 minutes discussion with his representative during his evidence.[5]As regards the failure to undertake any corroborative enquiries at all, the judgment at para 44 deals with this in detail, the point being that the Respondent was reasonably entitled to conclude that what was being suggested would be unlikely to add anything taking into account the initial fraud report. The Claimant seeks to re-argue his case.[6]The fact that the Claimant was a long-serving employee and that these were serious allegations was fully taken into account in assessing the fairness of the decision to dismiss (judgment para 49).[7]Rule 68(1) Tribunal Rules 2024 provides that a Tribunal can reconsider a judgment where it is in the interests of justice to do so.[8]I decide that there is no reasonable prospect that the judgment will be varied or revoked. The Claimant seeks to re-argue his case on grounds already addressed in the judgment which runs contrary to the principle of finality in litigation. There was no procedural unfairness at the hearing.[9]This application is therefore refused under Rule 70(2) of the Tribunal Rules 2024.