Claimant’s Request for Reconsideration Denied by Employment Tribunal

OUTCOME: Refused

Case No. 6009726/2024 6012599/2025

1

EMPLOYMENT TRIBUNALS

Claimant

Respondent Mr [APPELLANT] [COMPANY] ON APPLICATION FOR RECONSIDERATION

The Claimant’s application for reconsideration is refused because there is no reasonable prospect of the decision being varied or revoked.

REASONS

1. The Claimant has applied for a reconsideration of the Judgment dated 7 April 2026 which was sent to the parties on 27 April 2026. The grounds are set out in his revised application of 10 May 2026.

Relevant principles 2. Under rule 69 of the Tribunal Procedure Rules 2024, an application for reconsideration must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received inside the relevant time limit.

3. Reconsideration was an exception to the general rule that decisions should not have been re-opened and re-litigated in view of the underlying public policy principle that there should have been finality in litigation. Applications were not to have been used as a second bite at the cherry for the losing party. The ‘interests of justice’ requirement demanded that a judge considered the position of both parties to the litigation ([COMPANY]/0253/14).

4. The grounds for reconsideration were only those set out within rule 68. That allowed for a ‘broad discretion’ to have been exercised (Outasight above) and, although the list of factors that may have been relevant would have been fact sensitive in every case, it was clear form the decision in Outasight that finality in litigation was invariably going to have been one of them. That was a

Case No. 6009726/2024 6012599/2025

2 thread which had been common to many of the authorities in the area, stretching back, perhaps, to Phillips J’s judgment in Flint-v-Eastern Electricity Board [1975] ICR 395. Most recently, in [COMPANY] [2023] EWCA Civ 652, the Court of Appeal encouraged an approach to rule 70 which involved the weighing of the injustice that the parties would suffer if a reconsideration application was allowed or refused, but by also “giving weight to the public interest in the finality of litigation.” (paragraph 36).

5. In relation to new evidence, the general principles of civil litigation applied (Ladd-v-Marshall [1954] 3 All ER 745, CA). It was necessary to show: a. that the evidence could not have been obtained with reasonable diligence for use at the original hearing b. that the evidence was relevant and would probably have had an important influence on the hearing; and c. that the evidence was apparently credible.

6. In Outasight (above) the EAT stated that where those principles were not strictly met, the interests of justice may nevertheless allow fresh evidence to be considered. Reconsideration was appropriate where an issue had been overlooked – that may have involved giving the parties opportunity to make further representations - AB-v-Home Office EAT 0363/13. However, where reasons were incomplete or inadequate, but there was no prospect of the judgment being varied or revoked, a judge ought not reconsider in accordance with [COMPANY] 2019 ICR 976, EAT. Discussion and conclusion 7. In his application, the Claimant relied upon an extensive number of arguments over 14 pages with a number of Annexes.

8. Not every argument in his application has been addressed, but the following categories were addressed as they had been set out;

8.1 Medical evidence and feasibility of bringing the claim sooner (paragraphs 8-13);

He claimed that he had misunderstood what had been expected of him in terms of evidence at the hearing. Judge Midgley’s directions were clear. Whilst his own statement was deficient, his oral evidence, as cited in paragraph 87 of the Case Summary, did not assist him, particularly the penultimate bullet in paragraph 87.

Case No. 6009726/2024 6012599/2025

3 The new evidence (Annex 4) letter 8 April 2026, did not help as it referred to his ‘intermittent’ ability to have looked for work since his dismissal in November 2024.

8.2 Reasonable adjustments (paragraphs 14-19);

Paragraph 66 of the Case Summary recorded the fact that the adjustments which had been discussed and recorded by Judge Midgley had been considered by me during the hearing. Neither the Claimant nor his wife asserted otherwise. A particular record was made of a break that was requested and taken for the Claimant to have been able to have taken medication. No other breaks or adjustments were requested or denied;

8.3 Late evidence (paragraphs 20-25);

Paragraphs 84-86 dealt with Mr [APPELLANT] evidence. There is nothing within the Claimant’s Reconsideration Application which causes me to consider that that had been the wrong course of action to have taken. Without it, Mr [NAME] could equally have invited the Tribunal to have undertaken its own internet search and taken notice of the results;

8.4 [NAME] Director present (paragraphs 26-28);

The [NAME] Director of the Respondent was entitled to be present at the public hearing of the case concerning his own Company. The Judge has no record of the Claimant objecting but, even if he had, the circumstances set out in the Reconsideration Application would not have been sufficient to have enabled the Judge to exclude his attendance;

8.5 ACAS advice and procedural misunderstanding (paragraphs 29-38);

Much of this part of the Claimant’s argument was an attempt to re-put and/or reargue his case.

What the [APPELLANT] now asserts is that he contacted ACAS on seven occasions between 28 November 2024 on 28 February 2025. Not only is that assertion in direct contradiction of the evidence given at the hearing (the first bullet point in paragraph 87), but the degree of engagement further dilutes the Claimant’s assertion that he was incapable of seeking assistance and/or researching his position as a result of his medical condition at that time (see paragraph 79 of the Case Summary and the case of [NAME]).

He states now that, as a result of what ACAS had said, he ‘understood’ that limitation expired on 12 April 2025 (paragraph 31). He does not say

Case No. 6009726/2024 6012599/2025

4 that he was told that or that he had received express advice on limitation in a situation in which a first claim (and ECC) had been issued and obtained. To that extent, his assertions are consistent with what he said in evidence about [NAME] involvement (paragraph 37 of his Application) and the ‘impression’ that he had formed (third bullet of paragraph 87 of the Case Summary);

8.6 Waiting for the internal appeal (paragraphs 39-42);

It has been well established that the fact that an appeal may have been pending did not ordinarily render it not reasonably practicable to have presented a complaint in time (Bodha-v-Hampshire Area Health Authority [1982] ICR 200, EAT, Palmer-v-Southend-on-Sea Borough Council [1984] 1 All ER 945 and John Lewis Partnership-v-Charman UKEAT/0079/11);

8.7 Amendment application (paragraphs 43-50), Existing factual basis and Respondent’s prior knowledge (paragraphs 51-59), Amendment required separate analysis (paragraphs 60-67), Further particulars and ongoing factual matrix (paragraphs 68-71), Paragraph 36.14 (paragraphs 72-4);

All of these points concerned case management decisions, primarily relating to the amendment applications. Those decisions were not part of the Judgment and a reconsideration applications could not be pursued in respect of decisions other than those terminal rulings in Judgments (see rule 68 (1)).

9. Accordingly, the application for reconsideration pursuant to rule 70 (2) is refused because there is no reasonable prospect of the Judgment being varied or revoked.

________________________

Employment Judge Livesey Dated: 14 May 2026

Reconsideration sent to Parties on 26 May 2026

[NAME]

For the Tribunal Office