Ms Emma Sumner Third Claimant: Mrs Karen Tomlinson v Prime Care (UK) Limited t/a Sylvan Home Care Service — 2023

The tribunal considered applications by Ms Emma Sumner and Mrs Karen Tomlinson dated 18 December 2023 for reconsideration of the judgment sent on 4 December 2023, which had dismissed their constructive unfair dismissal claims. There was no reconsideration application by the First Claimant, Mrs Roberts. Applying rule 70 and rule 72(1), the judge held that reconsideration is exceptional and requires no reasonable prospect of the original decision being varied or revoked, and he also referred to the importance of finality in litigation and to Ladd v Marshall when dealing with fresh evidence.

Ms Sumner's application relied on disagreement with the earlier reasoning about the suspension of Mrs Roberts and the on-call phone. The judge held that the suspension of Mrs Roberts was not sufficient to amount to a breach of the implied term of trust and confidence, and that the on-call phone point was not expressly part of the pleaded issues and in any event was not capable of contributing to a fundamental breach. He also noted that the claims failed on the basis of the claimants' case, not because the respondent established a defence.

Mrs Tomlinson's application argued that paragraph 101 of the reasons had treated a failure to put complaints in writing or escalate them to Mr Borkhatria as determinative. The judge rejected that reading, saying paragraph 101 was a factual finding about her perception and that the absence of written complaints was only a relevant factor, not an absolute requirement. He therefore found no reasonable prospect of the original decision being varied or revoked.

The fresh evidence application for both claimants concerned evidence that Mrs Robinson remained employed by a company controlled by Mr Borkhatria. The tribunal refused to admit it because it could have been obtained before the hearing, was not shown to be sufficiently significant, and would not alter the findings already made. The result was that the reconsideration applications were refused and the original dismissal of the constructive dismissal claims remained in place.