Bham v 2gether NHS Foundation Trust

An application to reopen a concluded tribunal judgment using evidence already relied upon in an earlier unsuccessful reconsideration application is an abuse of process. The public interest in finality applies to both parties.

In any event, fresh evidence cannot justify reconsideration unless it is relevant to an issue determined and would probably have had an important influence on the result. A different label for the claimant’s treatment, such as restricted duties, special leave or suspension, was immaterial where the original tribunal’s findings established that the alleged comparator was not in the same circumstances.

Under the Employment Tribunals Rules of Procedure 2013, a tribunal may refuse a reconsideration application made years late. It may also determine, without a hearing, that there is no reasonable prospect of the original decision being varied or revoked after receiving both parties’ representations.

The claimant appealed from a Bristol Employment Tribunal decision sent on 19 May 2016. The Regional Employment Judge refused his application to reconsider a 2011 judgment dismissing discrimination and victimisation claims.

The application was made nearly five years after the original judgment. It relied on signed timesheets said to show that, after January 2010, the claimant had effectively been suspended rather than placed on restricted duties or sent home to work. The claimant contended that this was fresh evidence under the Ladd v Marshall principles.

The respondent contended that the material could not affect the original findings and that the claimant had previously sought reconsideration on the same signed timesheets in 2014. The appeal concerned abuse of process, time, the significance of the alleged fresh evidence, and whether a hearing was required before refusing reconsideration.

1. Appeal dismissed. The 2016 reconsideration application, and the appeal founded on it, were an abuse of process. The signed timesheets relied upon were the same material relied upon in the claimant’s unsuccessful 2014 reconsideration application and appeal. Had that history been before the EAT at the Rule 3(10) hearing, permission would not have been granted.

2. Independently, the Regional Employment Judge made no error in concluding that the material could not satisfy the materiality limb of the Ladd v Marshall principles. The original claim concerned allegedly discriminatory and victimising restrictions on the claimant’s role. Whether his treatment was called restricted duties, special leave, or suspension did not affect the first tribunal’s decisive findings that he and the proposed comparator were materially differently situated following the November 2009 incident.

3. The first tribunal had found that the claimant’s treatment flowed from the respondent’s accepted account of the incident and its wish to remove him from the relevant area rather than suspend him. Accordingly, even evidence capable of showing an effective suspension, and knowledge of it by the manager, could not undermine the original judgment or probably have influenced its outcome.

4. The Regional Employment Judge permissibly refused to extend time under the Employment Tribunals Rules of Procedure 2013. He was entitled to take account of the substantial prejudice in reopening proceedings concluded years earlier and of the claimant’s unexplained failure to apply within 14 days even of receiving the supposed new evidence.

5. Nor did Rule 72 require an oral hearing. Having received representations from both parties, including a further response from the claimant, the Regional Employment Judge could fairly decide under Rule 72(1) that there was no reasonable prospect of the original decision being varied or revoked. The parties were invited to make written submissions on whether the appeal was totally without merit.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the refusal of reconsideration.

• Employment Tribunal, Bristol: on 19 May 2016, the Regional Employment Judge refused reconsideration of the 2011 judgment as substantially out of time and, alternatively, because there was no reasonable prospect of variation or revocation.

• Employment Tribunal: the original judgment, sent on 18 May 2011, dismissed claims of direct discrimination, harassment and victimisation. Subsequent appeals and earlier reconsideration applications did not disturb it.