Employment Tribunals

Case No: 1805936/2022 1 EMPLOYMENT TRIBUNALS Claimant: Mr O Ogunbayo Respondent: Royal Mail Group Ltd JUDGMENT The claimant’s application dated 27 April 2023 for reconsideration of the reserved judgment which was sent to the parties on 13 April 2023 is refused. REASONS 1. After a 3 hour hearing on 9 February 2023, and following deliberations in chambers, the Employment Tribunal promulgated a reserved judgment on 13 April 2023 in respect of the preliminary issues of whether the claimant should be allowed to amend his claim, whether his claimant’s claim should be struck out as an abuse of process or on the grounds that it had no real prospect of success, and whether the claim should be made the subject of a deposit order on the ground that it has little reasonable prospect of success (The Judgment). 2. On 27 April 2023 the Tribunal received an application from the claimant for reconsideration of the Judgment. 3. Rule 70 of schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides an Employment Tribunal with a general power to reconsider any judgment where it is necessary in the interests of justice to do so. This power can be exercised either on the Tribunal’s own initiative or on the application of a party. Rules 71 to 73 set out the procedure by which the power is to be exercised. 4. Rule 70 provides a single ground for reconsideration. That ground is where it is necessary to do so in the interests of justice. This does not mean that in every case where a litigant is unsuccessful, they are automatically entitled to reconsideration. Instead, a Tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases fairly and justly, and the Tribunal should be guided by the common law principles of natural justice and fairness. Case No: 1805936/2022 2 5. Rule 70 provides the Tribunal with a general power to reconsider any judgment where necessary in the interests of justice to do so. A judgment is defined in Rule 1(3)(b) as a decision made at any stage of the proceedings which (amongst other things) finally determines the claim. It is not open to a party to seek reconsideration of the reasons for the judgment as opposed to the judgment itself. 6. Tribunals have a broad discretion but that must be exercised judicially, which means having regard not only to the interests of the party seeking the reconsideration, but also the interests of the other party to the litigation and the public interest in the finality of litigation (Outasight VB Ltd v Brown 2015 ICR D11 EAT). 7. An application for reconsideration must be presented in writing and copied to all other parties within 14 days of the date upon which the written record of the decision which is the subject of the reconsideration application was sent to the parties, or if a request for written reasons was made, within 14 days of the date the written reasons were sent out, if later. 8. In this case, the Judgment was promulgated on 13 April 2023. It follows that the claimant made the reconsideration application in time. Although the claimant does not appear to have complied with the procedural requirement to send a copy of the application to the respondent under rule 71 of the 2013 rules, the Tribunal can waive that requirement, and has exercised its discretion to waive that requirement in this case. The Tribunal therefore has jurisdiction to consider the reconsideration application. 9. Rule 72 of the 2013 rules sets out the procedure that an employment tribunal must follow upon receipt of an application for reconsideration. Firstly, the application is, where possible, put before the Employment Judge who decided the case. If the Employment Judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application will be refused and the Tribunal will inform the parties accordingly. 10. If the application is not refused, the Tribunal will send a notice to the parties setting a time limit for any response to the application by the other parties, and seeking the parties’ views on whether the application can be determined without a hearing. The matter will then proceed to a hearing unless the Employment Judge considers – having regard to any response to the application – 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. 11. The procedure does not allow for the Employment Judge to decide that a hearing is necessary before they take the decision under Rule 72(1) as to whether there is no reasonable prospect of the original decision being varied or revoked. This aspect of the procedure provides an important protection for the party opposing the application, in that the other party should not be put to the time and expense involved in responding to the application if the Employment Judge considers that there are no reasonable prospects of the Judgment being varied or revoked. Case No: 1805936/2022 3 12. The claimant says that the Judgment should be reconsidered because he is of the opinion that although Employment Judge Tegerdine understood his claim, she did not understand his explanation completely. He says that he did not realise the ET1 form was an integral part of his case and that he should have provided more details. The claimant also says that he was not able to evidence his complaint appropriately because the respondent did not include a bundle of documents relating to his dismissal in the bundle for the hearing on 9 May 2023. 13. The claimant says in his reconsideration application that his complaints are:  Race discrimination detriment 2019;  Unpaid wages and holidays in 2015;  Complaints of victimisation in 2018;  Complaints of victimisation and dismissal in 2019;  Refusal to comply with its own process and agree procedures under the bullying and harassment guidelines in 2019;  By the respondent upholding a fraudulent investigation and associating him with an allegation of sexual harassment, which is an act of victimisation in 2022. However, although the claimant was given the opportunity to clarify and explain his complaints during the hearing, he gave no indication that he wanted to pursue any of these complaints as part of his claim at the hearing on 9 February 2023. 14. The claimant’s reconsideration request does not explain what the additional documents he refers to were, why he didn’t send them to the Tribunal in advance of the hearing himself if he believed it was important for the Tribunal to have them for the purposes of the preliminary hearing, and he does not explain why or how they were relevant to the matters which were considered at the preliminary hearing. 15. The Tribunal reached its conclusions based on the submissions which were made on behalf of both parties at the hearing on 9 February 2023, and the documents which was presented to the Tribunal by the parties for the purpose of the hearing. Employment Judge Tegerdine is satisfied that she gave proper consideration to the documents which were put before her by both parties, to the representations which were made by the claimant during the hearing, and that she understood the complaints he wanted to bring. 16. It is not in the interests of justice that the claimant should be given a second bite of the cherry simply because he failed to adduce all the information which he believed was relevant to the matters which were being considered at the original hearing. A reconsideration application is not an opportunity for the parties to reargue their case, and a party’s failure to raise a particular point does not normally constitute grounds for review. 17. Having regard not only to the interests of the claimant, but also to the respondent’s interests and the public interest requirement that there should, so far as possible, be finality of litigation, nothing the claimant says in the reconsideration application persuades the Tribunal that there is any reasonable Case No: 1805936/2022 4 prospect of the claimant prevailing upon the Tribunal at a reconsideration hearing that the Tribunal’s Judgment was incorrect. 18. The Tribunal is therefore satisfied that there is no reasonable prospect of the Judgment or any part of it being varied or revoked. The reconsideration application is therefore refused. _____________________________ Employment Judge Tegerdine Date 4 May 2023 Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employmenttribunal- decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Case No:1805936/2022 1 EMPLOYMENT TRIBUNALS Claimant: Mr. Ogunbayo Respondent: Royal Mail Group Limited HELD AT: Leeds Employment Tribunal (By CVP) ON: 5 September 2023 BEFORE: Employment Judge Buckley Mr. K Lannaman Ms J Blesic REPRESENTATION: Claimant: Respondent: In person Ms Griffiths (solicitor) JUDGMENT having been sent to the parties 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: WRITTEN REASONS Procedural issues 1. The respondent applied on Friday to rely on a new witness. The claimant did not object. Even though the claimant did not object, as the claimant is a litigant in person the Judge spent some time with him asking if he would be caused any difficulties by the late disclosure. The Judge asked him specifically if he would have difficulties in, for example, preparing questions for the witness at such short notice. Case No:1805936/2022 2 2. The claimant was clear that he did not object. He explained that the statement was similar to the one already disclosed and stated that the late disclosure would not cause him any difficulties. 3. On that basis the tribunal agreed to allow the witness statement and adjourned to allow the claimant extra time to consider the statement and to prepare any questions. Issues 4. This is a claim for victimisation. 5. The issues for the tribunal to determine are set out on p 67 of the bundle. 6. We heard evidence from the claimant. On behalf of the respondent we heard evidence from Helen Chapman, Service Manager for New Joiners and Vetting and Alison Hammond, who has an administrative role in the New Joiners and Vetting team, and was a Customer Service Advisor at the relevant time. Findings of fact 7. The claimant was employed as an OPG (Operational Postal Grade) at the West Midlands Mail Centre from 12 December 2011. 8. On 18 March 2015 the claimant made a bullying and harassment complaint about a colleague that had allegedly called him a ‘lying Christian’. On 6 June 2016, the claimant was informed that the complaint was not upheld. 9. In 2019, disciplinary proceedings were brought against the claimant for misconduct, The claimant was dismissed on 6 August 2019 for gross misconduct. The claimant appealed and the appeal was not upheld on 11 October 2019. 10. The claimant presented a claim to the Employment Tribunal on 3 August 2020 for unfair dismissal, race and religion or belief discrimination, holiday pay, arrears of pay and wrongful dismissal. The claim was struck out on 6 November 2020, on the basis that it was out of time. The claimant appealed to the Employment Appeals Tribunal. The appeal was dismissed on 10 November 2022. 11. The claimant still maintains that his dismissal was unfair and discriminatory. 12. The claimant applied for a position with the respondent in 2021, which was rejected on the basis that he did not have the right to work. 13. The claimant applied for the position that is the subject of this tribunal proceedings on 27 September 2022. This was an application for the role of Christmas ‘Seasonal Mail Sorter’ role at Northwest Midlands Mail Centre. 14. The respondent applies eligibility checks to all applications. Stage 1 of the process involves checking whether or not the applicant has ever been previously dismissed by the respondent and why. Those responsible are sent a report of leavers which contains the reasons for their exit. The respondent’s use a table Case No:1805936/2022 3 called a ‘dismissal matrix’ to determine the consequences of any previous dismissal. If the applicant has been dismissed for gross misconduct, then the matrix indicates that the ex-employee ‘can never return’. That means that any application by an employee that has previously been dismissed for GM is automatically rejected at this stage. That is what happened with the claimant. 15. We heard evidence from Alison Hammond who was the employee who carried out the checks in this case. At the time, she was not aware that the claimant had brought a previous claim to the ET, nor that he had made the complaint of harassment that had been dismissed in 2016. She was simply informed by the system that the claimant had previously been dismissed for gross misconduct, applied the matrix and therefore rejected the application. That was the entire reason for his rejection. The fact that the claimant had made a complaint of harassment in 2015/2016 was not something Ms Hammond knew about at the time, and it played no part whatsoever in her decision. The fact that the claimant had brought a tribunal claim in 2020 was not something Ms Hammond knew about at the time, and it played no part whatsoever in her decision. 16. Mr. Ogunbayo asserted in the hearing today that Royal Mail could have rejected his application because he did not have the right to work, but deliberately chose to reject it because of his previous dismissal. 17. There is no suggestion in her evidence that Ms Hammond was aware that the claimant had also, separately, not satisfied the eligibility checks in relation to having the right to work. It is not clear on the evidence whether that was in fact that case, although the claimant appears to assert that it was. Those right to work checks would not have been carried out by Ms Hammond, but by the Post Office, which is a separate entity. There is no evidence that she made a positive choice to rely on the previous dismissal rather than that the claimant did not have the right to work. Her clear evidence, which we accept, was that the application was automatically rejected simply because the system showed that the claimant had been previously dismissed for gross misconduct. 18. There are many applications for seasonal employment. Those assessing the applications simply rely on the information provided to them by the system. They are only provided with the reason for dismissal and are not given any other information. They do not undertake any investigation to ascertain whether or not the records or accurate. They certainly do not undertake any investigation to ascertain whether or not any previous dismissal for gross misconduct was justified or fair or discriminatory. 19. Although assisted by Ms Hammond’s evidence, we would have made the same findings of fact on the basis of Ms Chapman’s evidence which was along very similar lines and describes the same processes. 20. On 3 October 2022 the claimant was sent an email (p 158) which stated: “We regret to inform you that your application for employment with Royal Mail Group is unable to progress. Case No:1805936/2022 4 Our Royal Mail eligibility checks have revealed information that does not meet the standards for employment.” The law 21. Under section 27 of the Equality Act 2010 a respondent victimises a claimant if the respondent subjects the claimant to a detriment because the claimant has done a protected act. 22. There are therefore three elements to a victimisation claim: 22.1. The claimant must have done a protected act, 22.2. The respondent must have subjected the claimant to a detriment and 22.3. The reason why the respondent subjected the claimant to a detriment must be the protected act. In other words the tribunal must ask the question: “why did the respondent subject the claimant to a detriment?” and for the claim to succeed the answer must be “because the claimant did a protected act”. Application of the law to the facts 23. It is accepted by the respondent that the claimant did two protected acts: the first a complaint of discrimination in 2015/2016 and the second a claim brought in the employment tribunal in 2020. 24. It is also accepted that the respondent subjected the claimant to a detriment by rejecting his application for seasonal work in 2022. 25. The question for the tribunal to answer is therefore ‘Why did the respondent reject the claimant’s application for seasonal work?’ 26. If the answer to that question is ‘at least in part because he made a complaint of harassment in 2015/2016 and/or, at least in part, because he brought a tribunal claim in 2020’ then the claim will succeed. If the answer is anything else, the claim will fail. 27. It is clear from our findings of fact above that we have found that the entire reason why the application was rejected was because the claimant had previously been dismissed for gross misconduct. The protected acts played no part whatsoever in the reason for the decision. The claim must therefore fail. 28. It would make no difference even if, as the claimant asserts, the previous dismissal was unfair or discriminatory. The claimant would still not have established the causative link between the refusal of the application and the protected acts. The dismissal itself is not be a protected act within the Equality Act, and therefore there is no protection for the claimant from being subjected to a detriment as a result of his dismissal, no matter how unjustified he believes it to have been. 29. It would also make no difference if, as the claimant asserts, the respondent had specifically chosen to rely on the claimant’s dismissal for gross misconduct rather Case No:1805936/2022 5 than his right to work. Even if this were the case, the claimant would still not have established the causative link between the refusal of the application and the protected acts. 30. For those reasons the claim is dismissed. ——————————————————————— Employment Judge Buckley Date 22 September 2023 Public access to employment tribunal decisions 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 No: 1805936/2022 11.6C Judgment – Reconsideration refused EMPLOYMENT TRIBUNALS Claimant: Mr. O Ogunbayo Respondent: Royal Mail Group Ltd JUDGMENT The claimant’s application dated 3 October 2023 for reconsideration of the decision dated 5 September 2023 is refused. REASONS 1. There is no reasonable prospect of the decision being varied or revoked. 2. The claimant asserts that the respondent failed to disclose evidence and present relevant witnesses. It is a matter for the respondent which witnesses it wishes to rely on. The respondent is under an obligation to disclose all relevant evidence and it is open to the claimant to make an application for specific disclosure if he considers that specific documents have not been disclosed. The claimant did not raise any issues about disclosure or witnesses at the hearing. The claimant has not identified any specific relevant evidence which he says was not disclosed bv the respondent. 3. The claimant asserts that it was not possible to determine the victimisation claim without determining that his dismissal was in breach of the Equality Act and the ‘Public Disclosure Act’. That is not the case. It was not necessary for me to determine those issues to determine the victimisation claim that was before me. Accordingly any documents or witnesses that related purely to those issues would not have been relevant. 4. The claimant refers to being ‘deceived’ by the respondent about the need for evidence at the preliminary hearing. The correspondence that he relies on relates to a preliminary hearing not to the final hearing on 5 September 2023. In that correspondence the respondent’s representative indicated that the bundle for the preliminary hearing only needs to include documents relevant to the preliminary issue of whether the claim should be struck out. The issue of what documents were included in the preliminary hearing bundle and why Case No: 1805936/2022 11.6C Judgment – Reconsideration refused is not relevant to my decision at the substantive hearing. 5. The claimant disagrees with decisions made at previous hearings. This does not give grounds for reconsidering the decision in question. 6. In reaching my original decision I correctly applied the relevant law to the facts and reached the decision as explained in my reasons. I have considered the points raised by the claimant and none of them demonstrate any arguable error of law or other reason which might give rise to a reasonable prospect of the decision being varied or revoked. _____________________________ Employment Judge Buckley Date 16 October 2023