Employment Tribunals

Case Number:1802877/2021 1 of 1 EMPLOYMENT TRIBUNALS Claimant: Mr E Sereteanu Respondent: Panel UK Limited Heard at: Leeds On: 24, 25 and 26 May 2022. Before: Employment Judge Shepherd Members: Ms Fawcett Ms Hill Appearances For the claimant: Mr Cross, Leeds Free Legal Representation For the respondent: Ms Twine, counsel Interpreter: Ms Hales JUDGMENT The unanimous judgment of the Tribunal is that: 1. The claim of race discrimination is not well-founded and is dismissed. 2. The claim of unfair dismissal is not well-founded and is dismissed. Employment Judge Shepherd Date: 26 May 2022 Note: Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. All judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Case Number:1802877/2021 1 of 10 EMPLOYMENT TRIBUNALS Claimant: Mr E Sereteanu Respondent: Panel UK Limited Heard at: Leeds On: 24,25 and 26 May 2022. Before: Employment Judge Shepherd Members: Ms Fawcett Ms Hill Appearances For the claimant: Mr Cross, Leeds Free Legal Representation For the respondent: Ms Twine, counsel Interpreter: Ms Hales Judgment having been sent to the parties on 26 May 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided: REASONS 1. The claimant was represented by Mr Cross and the respondent was represented by Ms Twine 2. The Tribunal heard evidence from: Emanuel Sereteanu, the claimant; Nigel Mitchell, Managing Director; Michael Tuxford, Production Manager 3. The Tribunal had sight of a bundle of documents which consisted of 270 pages. The Tribunal considered those documents to which it was referred by the parties. Case Number:1802877/2021 2 of 10 4. The issues to be determined had been identified at a Preliminary Hearing before Employment Judge Cox on 26 July 2021.. The parties agreed that these were the issues that the Tribunal was to determine at this hearing. They are as follows: The Claimant alleges unfair dismissal and direct race discrimination. Discrimination The Claimant is of Romanian nationality. He alleges that throughout his employment with the Respondent he was paid less than two colleagues of British nationality who worked in the assembly department with him, Mr Hurst and Mr Wilbourne, and that his lower pay rate was because of his nationality. He denies that his skill level was lower than theirs or that the work he did was less demanding. Unfair dismissal The Claimant was dismissed on 26 February 2021 without notice but with two weeks’ pay in lieu of notice. The Claimant alleges that the principal reason for his dismissal was that he had objected to the demand of his manager, Mr Tuxford, that he immediately take his holiday from the previous year. (He does not bring this claim under Section 101A of the Employment Rights Act 1996 as he accepts that he had no legal right to carry forward his leave from the previous year and this was not, therefore, leave to which he was entitled under the Working Time Regulations 1998.) He says that this did not amount to a potentially fair reason for dismissing him, whether as “some other substantial reason” justifying dismissal or otherwise. In the alternative, if the principal reason for the Claimant’s dismissal was, as the Respondent claims, redundancy, or was some other substantial reason, he claims that the Respondent did not act reasonably in dismissing him for that reason. In particular, he denies that the Respondent followed a fair redundancy process before deciding to dismiss him for redundancy. Only one group meeting was held, he says, to discuss the possibility of redundancy. There was no individual consultation with him. The parties agreed the list of issues to be determined by the Tribunal as follows: 1. Direct discrimination (section 13 EqA10) C relies upon his Romanian nationality, identifying CH and LW as comparators. R admits C pay was less than CH and LW, such that he was thereby treated less favourably but maintains non-discriminatory reasons. (i) Are CH and LW C comparators, in so far as their circumstances were materially the same as Cs? Case Number:1802877/2021 3 of 10 (ii) If so (or assumed), was the less favourable treatment (pay) because of/ on the grounds of C race, contrary to the EqA10? Considering the shifting burden (s136EqA), is R able to prove no discrimination whatsoever? 2. Unfair dismissal (s.98 ERA96) C contends that the principal reason was his objection to MT to immediately take his holiday for the previous year and does not accept that there was a real redundancy situation at the time of dismissal. (iii) Was there a genuine redundancy situation in February 2021? (iv) Has R shown that C was dismissed for the potentially fair reason of redundancy? (v) If so, did R act reasonably in all the circumstances of the case in treating redundancy as a sufficient reason to dismiss C having regard to equity and the substantial merits of the case under s98(4) ERA? In particular: a. Did R carry out the selection exercise using scoring matrix? b. If so, was that a genuine selection exercise? c. Did R fail to offer suitable and sufficient and available alternative employment to C prior to his dismissal? d. Was the dismissal within a band of reasonable responses? 3. Remedy (vi) To what extent, if any, has C mitigated his losses? (vii) What, if any, compensation should C be awarded including for injury to feelings? Findings of fact 5. Having considered all the evidence, both oral and documentary, the Tribunal makes the following findings of fact on the balance of probabilities. These written findings are not intended to cover every point of evidence given. These findings are a summary of the principal findings that the Tribunal made from which it drew its conclusions. 6. Where the Tribunal heard evidence on matters for which it makes no finding or does not make a finding to the same level of detail as the evidence presented, that reflects the extent to which the Tribunal considers that the particular matter assists in determining the issues. Some of the Tribunal’s findings are also set out in its conclusions, to avoid unnecessary repetition and some of the conclusions are set out within the findings of fact. 7. The claimant was employed by the respondent from 27 February 2018. Case Number:1802877/2021 4 of 10 8. He was employed in the respondent’s assembly department. At the date of the termination of his employment he was paid at the rate of £10.61. His identified comparators, Carl Hurst and Lee Wilbourne were paid at the rate of £11.67. 9. The claimant alleged that this was less favourable treatment because of the claimant’s Romanian national identity. 10. The rate of pay was set by Nigel Mitchell who gave clear and straightforward credible evidence that nationality played no part whatsoever in the decision to set the rate of pay. He provided a table showing that there are a number of foreign nationals employed by the respondent. Some of them are paid higher than UK nationals. The rates of pay are largely based on length of service. 11. The respondent suffered a considerable downturn in work due to the Covid-19 pandemic. The orders were down and the monthly turnover had dropped significantly. Mr Mitchell decided that it was necessary to consider redundancies and discussed it with the other directors and produced a business case which concluded that, due to loss of orders, it was necessary to reduce the headcount by two operatives. 12. On 26 October 2020 a staff meeting was held with all the employees who were informed that the respondent was considering a redundancy programme and it was anticipated that two employees would be made redundant in the assembly department. 13. On 2 November 2020 the claimant was provided with a notice which indicated that his role may be affected. The affected employees were invited consider whether they wished to apply for voluntary redundancy. 14. On 4 November 2020 the claimant attended a redundancy consultation meeting in which he was provided with the business case and explanation and he was shown the selection assessment form that was to be used if the final decision was to make redundancies. 15. The criteria had been provided to the respondent by the Federation of Small Businesses. 16. The Tribunal had sight of the selection assessment form for the claimant, his two comparators and another employee within the assembly department, Shemsi Aliu. The claimant’s score was 25 points, Carl Hurst scored 27 points, Shemsi Aliu scored 26 points and Lee Wilberforce scored 27 points. 17. The difference in the scores was largely as a result of length of service. The claimant had two years’ service. Lee Wilbourne had 12 years’ experience in the Department. Carl Hurst had eight years’ experience and Shemsi Aliu had 18 years’ experience. 18. The Tribunal is satisfied that the selection criteria were objective and fairly applied. 19. On 12 February 2021 the claimant notified that he had been selected for redundancy. He was informed that the respondent was not able to offer an alternative position and that his scores fell short as he had shorter service than the other assemblers. He was informed of his right to appeal. Case Number:1802877/2021 5 of 10 20. On 19 May 2021 the claimant presented a claim to the Employment Tribunal. He claimed unfair dismissal and race discrimination. The law Direct discrimination 19. Section 13 of the Equality Act 2010 states: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. Burden of Proof 20. Section 136 of the Equality Act 2010 states: “(1) This Section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But sub-Section (2) does not apply if (A) shows that (A) did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or Rule. (5) This Section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to – (a) An Employment Tribunal.” 21. Guidance has been given to Tribunals in a number of cases. In Igen v Wong [2005 ] IRLR 258 and approved again in Madarassy v Normura International plc [2007] EWCA 33. Case Number:1802877/2021 6 of 10 22. The claimant must prove, on the balance of probabilities, facts from which a Tribunal could conclude, in the absence of an adequate explanation that the respondent had discriminated against her. If the claimant does this, then the respondent must prove that it did not commit the act. This is known as the shifting burden of proof. Once the claimant has established a prima facie case (which will require the Tribunal to hear evidence from the claimant and the respondent, to see what proper inferences may be drawn), the burden of proof shifts to the respondent to disprove the allegations. This will require consideration of the subjective reasons that caused the employer to act as he did. The respondent will have to show a non-discriminatory reason for the difference in treatment. In the case of Madarassy the Court of Appeal made it clear that the bare facts of a difference in status and a difference in treatment indicate only a possibility of discrimination: “They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”. 23. In the case of Strathclyde Regional Council v Zafar [1998] IRLR 36 the House of Lords held that mere unreasonable treatment by the employer “casts no light whatsoever” to the question of whether he has treated the employee “unfavourably”. 24. In Law Society and others v Bahl [2003] IRLR 640 the EAT agreed that mere unreasonableness is not enough. Elias J commented that “all unlawful discriminatory treatment is unreasonable, but not all unreasonable treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour … Simply to say that the conduct was unreasonable tells nothing about the grounds for acting in that way … The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation given for it than it would if the treatment were reasonable.” 25. A Tribunal must also take into consideration all potentially relevant nondiscriminatory factors that might realistically explain the conduct of the alleged discriminator. Unfair Dismissal 26. Where an employee brings an unfair dismissal claim before an Employment Tribunal and the dismissal is established or conceded it is for the employer to demonstrate that its reason for dismissing the employee was one of the potentially fair reasons set out in Section 98(1) and (2) of the Employment Rights Act 1996. If the employer establishes such a reason, the Employment Tribunal must then determine the fairness or otherwise of the dismissal by deciding in accordance with Section 98(4) of the Employment Rights Act 1996 whether the employer acted reasonably in dismissing the employee. Redundancy is a potentially fair reason for dismissal under Section 98(2). 27. The definition of redundancy is contained in Section 139(1) of the Employment Rights Act 1996. This states: Case Number:1802877/2021 7 of 10 “For the purposes of this act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to:- (a) the fact that the employer has ceased or intends to cease – (i) to carry on the business for the purposes of which the employee was employed by him or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business – (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished or are expected to cease or diminish” 28. If it is accepted that the reason for dismissal was redundancy then it is necessary to decide if that dismissal was reasonable under Section 98(4) of the Employment Rights Act 1996. In judging the reasonableness of an employer’s conduct, a Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer. In many cases there is a band of reasonable responses within which one employer might reasonably take one view and a different employer might reasonably take another view and the function of the Tribunal is to determine whether, in the particular circumstances of the case, the decision to dismiss fell within the band of reasonable responses which an employer might have adopted. 29. The factors of which a reasonable employer might be expected to consider are whether the selection criteria including the pool for selection were objectively chosen and fairly applied, whether the employee was warned and consulted about the redundancy, whether any alternative work was available. 30. In Williams & Others v Compare Maxam Limited [1982] ICR 156, the Employment Appeals Tribunal laid down guidelines which a reasonable employer might be expected to follow in making redundancy dismissals. The factors suggested which a reasonable employer might be expected to consider were whether the selection criteria were objectively chosen and fairly applied, whether employees were warned and consulted about the redundancy, whether, if there was a union, the union’s view was sought and whether any alternative work was available. 31. In carrying out a redundancy exercise, an employer should begin by identifying the pool of employees from whom those who are to be made redundant will be drawn. The Tribunal will consider whether an employer acted reasonably in identifying the pool for selection and may consider whether other groups of employees are doing similar work to the group from which the selections were made, whether employees’ jobs are Case Number:1802877/2021 8 of 10 interchangeable and whether the employees’ inclusion in this unit is consistent with his or her previous positions. A fair pool of selection is not necessarily limited to those employees doing the same or similar work. Employers may be expected to include in the pool those employees whose work is interchangeable. 32. In the case of British Aerospace plc v Green and others 1995 ICR 1006 CA it was held that provided an employer’s criteria objective, a Tribunal should not subject them or their application to over minute scrutiny essentially, the task for the Tribunal it is satisfied itself that the method of selection was not inherently unfair and that it was applied in the particular case in a reasonable fashion. 23. The parties’ representatives made submissions to the Tribunal. They provided written submissions and indicated that they did not wish to supplement these. These submissions were helpful. They are not set out in detail but both parties can be assured that the Tribunal has considered all the points made and the authorities referred to even where no specific reference is made to them. Conclusions 24. The Tribunal has considered all the evidence carefully and reached the following conclusions. 25. The claim of direct discrimination was on the basis that the claimant was paid less than his identified comparators, Lee Willbourne and Carl Hurst. They were paid more than the claimant, there was a difference in the hourly rate of approximately £1.06. 26. The Tribunal finds that the comparators were not in the same material circumstances as the claimant. The Respondent viewed the comparators as having substantially more experience and greater skills and ability to act autonomously. The respondent employs a number of foreign nationals some of whom are paid less than UK nationals and some more. It was not established that there was a policy of paying foreign nationals less than UK nationals. 27. It was not established that there were grounds from which the Tribunal could conclude that there was discriminatory treatment by reason of the claimant’s nationality. The burden of proof did not shift to the respondent. If it had, the Tribunal is satisfied that the respondent has shown that there was a non-discriminatory reason for the difference in pay. The comparators had substantially more experience and the respondent has shown that the reason for the difference in pay was because of their length of service and perceived superior skills. 28. The respondent established that there was a redundancy situation. The respondent’s monthly turnover had dropped as a result of a substantial reduction in orders and the business case for a reduction in headcount was clear. Nigel Mitchell gave clear and credible evidence that, although the turnover had increased it was not at the level that the respondent would break even in February 2021. There was a genuine redundancy situation. Initially it was considered that to operatives would be made redundant. Two of the office staff left and the respondent then considered that only one operative would be made redundant. Case Number:1802877/2021 9 of 10 29. The Tribunal has considered the claimant’s allegations that the principal reason for his dismissal was that he had objected to the demand of Mr.Tuxford that he immediately takes his holiday from the previous year. The claimant provided a transcript of the recording of part of the conversation with Michael Tuxford when the claimant had been told that his redundancy was confirmed. There was some discussion about the holidays. The claimant was not forced to take holidays. A lot of employees had built holidays up and Michael Tuxford asked if they would use their holidays. 30.The confirmation that he had been selected for redundancy was given to the claimant two days after the discussion with regard to holidays. The Tribunal has given very careful consideration to this allegation. 31. Michael Tuxford told the claimant that he did not know that the claimant was to be made redundant on the Wednesday when the holiday discussion took place. 32. The scoring had been carried out some weeks before. The final decision was that of Nigel Mitchell and he had hung back in the hope that the respondent’s financial situation would improve. 33. Michael Tuxford was informed that the claimant’s redundancy was to be confirmed after the discussion with regard to holidays and before the meeting on 12 February 2021. 34. The claimant was dismissed by reason of redundancy. The respondent identified the pool for selection as those within the assembly department. The criteria were those provided to the respondent by the Federation of Small Businesses. They were applied fairly by the production manager and moderated by the Director responsible for Human Resources. 35. The claimant said that the scores had been completed after he was informed that he had been made redundant. There was no evidence to support this allegation. He had been given a letter of confirmation of redundancy in which there was reference to the attached selection assessment form and an explanation that the claimant points score only fell short due to his length of service and the length of service of all the others in the pool was set out in the letter. The claimant provided a transcript of a telephone conversation with Carl Hurst in which they discussed the points system and that everyone had the same score. The only difference was the years of service with the respondent. 36. The claimant scored marginally lower than all the others within the pool for selection on the basis of his length of service. 37. The selection criteria were objectively chosen and fairly applied. The claimant was warned and consulted and there was reasonable consideration of whether there was any suitable alternative employment for the claimant. The dismissal the claimant by reason of redundancy was within the band of reasonable responses and the claim of unfair dismissal does not succeed. 38. During the course of his evidence, it became clear that the claimant was very much concerned about the fact that his qualifications and previous experience had not been taken into account when setting his wages. He felt that this was unjust and unreasonable. However, he was unable to show that the reason why was that of his Romanian Case Number:1802877/2021 10 of 10 nationality. He referred to other foreign nationals being paid less throughout the factory. However, this was not established. There were four employees in the assembly department. The highest-paid was an Eastern European national. 39. The two employees identified as comparators had worked for the respondent for 10 and 18 years and the Tribunal accepts that it was perceived by the respondent that they had greater skills and could carry out work independently. That was the reason for the claimant’s selection for redundancy. 40. The decision to terminate the claimant’s employment on grounds of redundancy was within the band of reasonable responses available to the respondent. 41. In the circumstances, the unanimous decision of the Tribunal is that the claims of race discrimination and unfair dismissal are not well-founded and are dismissed. Employment Judge Shepherd 9 June 2022 Case Number: 1802877/2021 1 EMPLOYMENT TRIBUNALS Claimant: Mr E Sereteanu Respondent: Panel UK Ltd. JUDGMENT ON APPLICATION FOR RECONSIDERATION The application for reconsideration is refused as there is no reasonable prospect of the original decision being varied or revoked. REASONS 1. The judgment in this case sent to the parties on 26 May 2022. Written reasons were sent to the parties on 14 June 2022. The unanimous judgment of the Tribunal was that claims of race discrimination and unfair dismissal were not well founded and were dismissed. 2. The Tribunal found that the respondent had established that there was a redundancy situation. The respondent’s monthly turnover had dropped as a result of the substantial reduction in orders. The respondent’s managing director, Nigel Mitchell gave clear and credible evidence that there had been a substantial reduction in orders due to the Covid-19 pandemic. Although the turnover had increased it was not at the level that the respondent would break even in February 2021. 2. The claimant applies for a reconsideration of the judgment in respect of the claim for unfair dismissal. It is submitted that the claimant believes judgment must be varied or revoked because of the availability of new evidence directly contradicts Tribunal’s finding that there was a redundancy situation. 3. The claimant has acquired the unaudited financial statements of the respondent for the three years ending 2016 – 2020 from the Companies House website. 4. It is contended on behalf of the claimant that this evidence could not have been obtained with reasonable diligence for use at the original Tribunal hearing. 5. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, provides as follows: Case Number: 1802877/2021 2 “70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (‘the original decision’) may be confirmed, varied or revoked. If it is revoked it may be taken again. 71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 72 (1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.” 6. The previous Employment Tribunal Rules (2004) provided a number of grounds on which a Judgment could be reviewed The only ground in the 2013 Rules is that a Judgment can be reconsidered where it is necessary in the interests of justice to do so. I consider that the guidance given by the Employment Appeal Tribunal in respect of the previous Rules is still relevant guidance in respect of the 2013 Rules. It was confirmed by Eady J in Outasight VB Ltd v Brown UKEAT/0253/14/LA that the basic principles still apply. 7. There is a public policy principle that there must be finality in litigation and reviews are a limited exception to that principle. In the case of Stevenson v Golden Wonder Limited [1977] IRLR 474 makes it clear that a review (now a reconsideration) is not a method by which a disappointed litigant gets a “second bite of the cherry”. Lord McDonald said that the review (now reconsideration) provisions were “Not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before”. Case Number: 1802877/2021 3 In the case of Fforde v Black EAT68/80 where it was said that this ground does not mean: “That in every case where a litigant is unsuccessful is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in even more exceptional cases where something has gone radically wrong with the procedure involving the denial of natural justice or something of that order”. 8. In the interest of justice means the interest of justice to both sides. The Employment Appeal Tribunal provided guidance in Reading v EMI Leisure Limited EAT262/81 where it was stated: “When you boil down what is said on (the claimant’s) behalf it really comes down to this: that she did not do herself justice at the hearing, so justice requires that there should be a second hearing so that she may. Now, ‘justice’ means justice to both parties”. 9. Mr Cross, on behalf of the claimant, referred The case of Ladd v Marshall [1954] 1 WLR1489. In which the question of new evidence was considered. The claimant must show that the new evidence: a) Could not have been obtained with reasonable diligence use at the original Tribunal hearing. b) was relevant and would probably have had an important influence on the hearing. c) was apparently credible. 13. It is submitted that the evidence could not been obtained with reasonable diligence for use at the original Tribunal. 14. The claimant did not provide evidence of the respondent’s financial situation in the hearing. The only evidence that the Tribunal heard on the matter was the Nigel Mitchell, the Managing Director’s evidence. In his witness statement it was stated: “In November 2019, monthly turnover was as high as £748,460 whereas, by a 2020, monthly turnover had dropped to £119,410. Whilst turnover increased in the months following May 2020, the figures began to drop again reaching lows of £300,925 in January 2021 and two £263,45 in February 2021.” 15. When giving oral evidence, Mr Mitchell clarified the monthly turnover £380,000 was needed to break even and that the company was losing money. 16. The claimant did not provide evidence to contradict Mr Mitchell’s claims regarding the company’s finances, as the claimant had no personal involvement in the company’s finances. 17. Mr Cross submitted that the claimant believes that Nigel Mitchell misled the Tribunal when giving evidence of the company’s financial situation. It is submitted Case Number: 1802877/2021 4 that it was not anticipated that Nigel Mitchell would do so; therefore, evidence to contradict Nigel Mitchell’s account was not sought before the hearing. 18. Mr Cross submitted that there was nothing stopping Mr Cross or the claimant from getting his evidence for the hearing, they merely didn’t think to. However, the standard expected is reasonable diligence and it would have been extreme diligence to anticipate that Nigel Mitchell would mislead the Tribunal. 19. Since the hearing the claimant has sought the documents to contradict Nigel Mitchell’s account. It is acknowledged that it is possible to obtain the documents before the hearing; they were available online at the time. However, it is submitted that it would be more than reasonable diligence to have thought to obtain the evidence before the hearing. 20. Whether the respondent was in a redundancy situation was central to the claimant’s claim for unfair dismissal. 21. The documents provided show that the net assets had increased between 2016 and 2020. It is submitted that this directly contradicts Nigel Mitchell’s evidence that the company was losing money monthly and it was consistent with the claimant’s claim that work had been busy all year. It was also stated that, in the year before the claimant was made redundant, when the company was supposedly Covid, the number of employees increased from 39 to 46. 22. It is submitted that, although the evidence was theoretically available, the Tribunal should allow for the extreme diligence expected of the claimant to seek this evidence in advance of the hearing, especially considering the claimant was not professionally represented. 23. I have considered the submissions carefully. I do not accept that the position changed significantly after Nigel Mitchell’s oral evidence before the Tribunal. The witness statement of Nigel Mitchell had been disclosed. The claimant knew what Nigel Mitchell was going to say to the Tribunal in his evidence in chief. 24. The reason put forward for not obtaining this evidence is that the claimant believes that Nigel Mitchell misled the Tribunal when giving evidence of the company’s financial situation. It was not anticipated that Nigel Mitchell would do so and, therefore, evidence to contradict this account was not sought before the hearing. 25. The Tribunal accepted Nigel Mitchell’s evidence that the turnover of the respondent company had dropped significantly. It was found that the evidence was clear and credible that there had been a substantial reduction in orders and the business case for a reduction in headcount was clear. This was not challenged by the claimant and it was not put to Mr Mitchell that the number of employees had increased. 26. It appears that the claimant has reached the view that Nigel Mitchell had misled the Tribunal as a result of finding the evidence that was readily available online. The claimant could have challenged the evidence at the time and is looking for “a second bite of the cherry”. Case Number: 1802877/2021 5 27. The claimant was aware of the evidence Nigel Mitchell was to give to the Tribunal and he has decided to challenge it by seeking out further information after the hearing. This is an example of the claimant seeking to reopen the evidence based on evidence that was available at the time but only obtained by the claimant followed the hearing. 28. The evidence had been available before the Tribunal hearing and could have been found by reasonable diligence. I do not accept the submission that it would have required extreme diligence to anticipate that Nigel Mitchell would mislead the Tribunal. The evidence of Nigel Mitchell did not vary in substance from his written witness statement and I do not accept the submission that it was not anticipated that Nigel Mitchell would mislead the Tribunal. The evidence was available in advance of Tribunal hearing, it was not challenged, and, as the evidence was readily available on the government website, it was available prior to the hearing. 29. It is clear that the claimant now wishes to have another chance to challenge the evidence given at the Tribunal. The substance of the evidence the claimant now seeks to challenge was within the written statements that had been exchanged. He had that chance at the hearing and I do not think that it is in the interests of justice for the claimant to be allowed a second chance to challenge the evidence, the substance of which of which he was aware, by producing evidence that was available and could been obtained with reasonable diligence at the time of the original hearing. 30. There is nothing raised by the claimant that would provide a reasonable prospect of the judgment being varied or revoked and the application for a reconsideration is refused. Employment Judge Shepherd 22 July 2022