A Roy v CMR Surgical Ltd

Case Number: 3311224/2023

EMPLOYMENT TRIBUNALS Claimant Mr A Roy Respondent v CMR Surgical Ltd Heard at: Cambridge (in public) On: 3 October 2025 Before: Employment Judge Tynan Members: Mr C Grant and Ms M Harris Appearances For the Claimant: For the Respondent: Mr S Maini-Thompson, Counsel In person

JUDGMENT on APPLICATIONS for RECONSIDERATION Upon the Respondent’s application dated 5 March 2025 to reconsider the Tribunal’s judgment dated 20 February 2025 (“the Conley Judgment”) and for the correction of a clerical mistake or omission; And upon the Claimant’s application dated 12 March 2025 (amended on 2 October 2025), to reconsider the Conley Judgment: 1. Pursuant to rule 67 of the Employment Tribunals Procedure Rules 2024, the Conley Judgment is corrected as follows: (a) so that the date the judgment was sent to the parties shall be recorded as 26 February 2025, not 20 February 2025; and (b) so that the reference to “issue xl” in paragraph 156 of the reasons is amended to “issue B5(xl) in Employment Judge S Moore’s list of issues”.

2. The Tribunal determines that it is necessary in the interests of justice to reconsider the Conley Judgment. Case Number: 3311224/2023 3. On reconsideration, the Conley Judgment shall be varied as follows: 1. The complaint of harassment because of race as set out in paragraph A1(iii) of the List of Issues, namely that on 4 October 2022 Marta Tabacka called the Claimant a “foreigner”, is well-founded.

2. Whilst the complaint at paragraph 1 above is also potentially well-founded under s.13 of the Equality Act, by virtue of s.212 of the Act the Tribunal cannot uphold a separate complaint of direct discrimination in relation to that same matter.

3. The complaint of direct discrimination because of race as set out in paragraph B5(xl) of the List of Issues, namely in respect of the Claimant’s redundancy dismissal, is well-founded.

4. The Claimant’s remaining harassment and direct discrimination complaints are not well-founded and are dismissed.

5. The matter is to be listed for a remedy hearing at the first convenient date.

4. On reconsideration, the following shall be removed from the Conley Judgment reasons: Paragraph 150(iii) Accordingly we find in favour of the claimant in relation to both harassment and direct discrimination in relation to this allegation. Paragraph 161 However, it is important to note that there were a number of aspects of the claimant’s behaviour that doubtless contributed to the manner in which he was treated by the respondent, and this must be acknowledged and reflected in any award made to the claimant as a result of our findings.

REASONS Background 5. A reserved judgment on liability was approved by Employment Judge Conley on 20 February 2025. It is not in dispute that the Conley Judgment (as defined) was sent to the parties on 26 February 2025, but incorrectly recorded on the judgment as having been sent to them on 20 February 2025. The Conley Judgment shall be corrected pursuant to rule 67 of the Employment Tribunals Procedure Rules 2024 (“the Rules”) in order to rectify this clerical mistake. Case Number: 3311224/2023 6. 7. 8. 9.

10. Rule 68 of the Rules empowers a tribunal, either on its own initiative or on the application of a party, to reconsider any judgment where it is necessary in the interests of justice to do so. The parties’ respective applications to reconsider the Conley Judgment were submitted within 14 days of the judgment having been sent to them, in compliance with rule 69 of the Rules. Due to an administrative error, the applications were listed for determination on 1 August 2025 before Employment Judge Tynan sitting alone, rather than before a full tribunal. The case had been referred to Employment Judge Tynan as Employment Judge Conley stopped sitting in the employment tribunals shortly after the judgment was sent to the parties. Employment Judge Tynan directed that the parties’ applications should be re-listed for hearing before a full tribunal. Mr Grant and Ms Harris were the original members who sat with Employment Judge Conley. However, neither of them had seen a draft of the Conley Judgment before it was approved and sent to the parties. That is not unusual as Employment Judges are responsible for producing the written judgment that gives effect to the tribunal’s discussions and decision. Applications for Reconsideration Any suggestion that a tribunal has made an error of law or that its findings were perverse is generally a matter for appeal – Ebury Partners UK Limited v Acton

Davis [2023] EAT 40. In Outasight VB Limited v Brown UKEAT/0253/14, the Employment Appeal Tribunal considered the Tribunal’s equivalent powers under Rule 70 of the Employment Tribunal Rules of Procedure 2013 and observed: “The interests of justice have thus long allowed for a broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, insofar as possible, be finality of litigation.” 11. The need to have due regard to the interests of both parties was recognised by the Employment Appeal Tribunal some years earlier in Redding v EMI Leisure Ltd EAT/262/81 in which it was said: “…When you boil down what is said on [the Claimant’s] behalf, it really comes 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. It is not said, and, as we see, cannot be said that any conduct of the case by the employers here caused [the Claimant] not to do herself justice. It was, we are afraid, her own experience in the situation…” 12. 13. 14.

15. Case Number: 3311224/2023 In broad terms, the reconsideration procedure can be used to correct any error that occurs in the course of the proceedings, whether or not it is a significant error. An important consideration is whether or not a decision has been reached after a procedural mishap, meaning that a party has been denied a fair and proper opportunity to put their case. Reconsideration should not ordinarily be used to correct alleged errors where the parties were afforded that opportunity. In AB v Home Office EAT 0363/13 the Employment Appeal Tribunal considered the correct approach to be taken where a tribunal has failed to determine an issue, or where an issue has been determined but the tribunal’s reasons for its decision are inadequate. The EAT held that there is a distinction to be drawn between those situations and that in the former situation arrangements should usually be made for the tribunal to reconsider its judgment as it will be necessary in the interests of justice for the tribunal to determine the issue that has been overlooked. The decision does not rule out the possibility of reconsideration in the second situation. However, in the particular circumstances, the judge had been correct in AB to refuse a review as she was entitled to conclude that the application was essentially an application for better reasons in circumstances where there was no real

prospect of the tribunal varying or revoking its decision. The decision was followed in Ameyaw v PricewaterhouseCoopers Services Ltd EAT 0291/19. Ms Ameyaw did not wish to have the judgment on the respondent’s strike-out application varied or revoked, as it had been determined in her favour. Her challenge was only to the reasons given by the employment judge, who had criticised her conduct at the hearing. The parties’ applications It is convenient to deal with the Respondent’s applications first. The Claimant accepts that, as worded, the Conley Judgment (that is to say the judgment itself, rather than the reasons that follow), is unclear as to the extent to which the harassment and direct discrimination claims had succeeded. In each case, all the Conley Judgment says is that each claim succeeds “to a limited extent”. The Claimant accepts that two complaints were expressly upheld, as set out in paragraphs 150(iii) and 156 of the Conley Judgment reasons. Arguably, the judgement wording could be said to amount to a clerical mistake. However, for the avoidance of doubt, we shall deal with the matter by way of reconsideration. In our judgement, it is necessary in the interests of justice to vary the Conley Judgement to make clear that the claims succeed in respect of the two complaints in paragraphs 150(iii) and 156.

16. In the case of paragraph 156, the Claimant accepts that the conclusion at paragraph 156 was that he was directly discriminated against by being dismissed in which case the reference to “issue xl” would seem to be to a reference to paragraph B5(xl) of the list of issues in Employment Judge S Moore’s record of the preliminary hearing on 27 February 2024. The Conley Judgment can be amended to make this clear. 17. 18.

19. Case Number: 3311224/2023 At the hearing on 1 August 2025, Employment Judge Tynan expressed his provisional views on the reconsideration applications. He provided the Claimant with some text from the IDS Handbook and also encouraged the Claimant to research the meaning and effect of s.212 of the Equality Act 2010. Although Ground 5 of the Claimant’s amended application for reconsideration asserts otherwise, following further discussion of the matter today, the Claimant confirmed that he accepts that although a claimant is entitled to pursue claims of both harassment and direct discrimination in respect of the same facts, a tribunal cannot uphold both claims since a successful claimant would otherwise be compensated twice in respect of the same matter. In which case, it is necessary in the interests of justice to further vary the Conley Judgment to make clear that the complaints in respect of the matter referred to in paragraph 150(iii) of the Conley Judgment only succeed as a complaint of harassment even if the direct discrimination complaint was otherwise well-founded. Turning then to the Claimant’s application for reconsideration, although his amended application (referred to by the Claimant as an “application to amend notice of appeal for reconsideration pursuant to the directions of EAT”) was not discussed or permitted at the hearing on 1 August 2025, we are content to

proceed on the strength of the amended application, particularly as it both narrows the ambit of the application and also clarifies the basis for it. The stated first ground for the Claimant’s reconsideration application is that the Tribunal failed to determine key allegations and provide adequate reasons. As noted above, the Claimant accepts that two complaints were expressly upheld. The members have confirmed that this reflects the full extent to which his complaints succeeded. As to the adequacy or otherwise of the reasons, at a ‘Rule 3(1)’ hearing at the EAT on 3 September 2025, Sarah Crowther KC, Deputy Judge of the High Court, allowed the Claimant’s Rule 3(10) application in respect of the amended grounds of appeal advanced by the Employment Law Appeal Advice Scheme on his behalf at the hearing. In her reasons for her decision, the judge said: “… it is arguable in my judgment that the reasons are insufficient for either party to know whether it is has won or lost and the reasons for that outcome.” 20. We have considered whether we might revisit the reasons without the EAT being required to determine their adequacy. Unless the EAT decides otherwise, we have concluded that it is not in the interests of justice that we do so. Firstly, we are mindful of the potentially limited circumstances in which a tribunal may vary its reasons where these are believed to be inadequate, or

arguably inadequate. We are unaware of any reported decision in which a tribunal has adopted that course; no such decision has been drawn to our attention by Mr Maini-Thompson. Secondly, and perhaps more significantly, Employment Judge Tynan was not the judge at the liability stage, so he is personally not in a position to bring any further clarity to bear even if he were to be persuaded that the reasons are 21.

22. Case Number: 3311224/2023 inadequate or incomplete in some material respect. The members are also at a potential disadvantage in the matter in so far as Employment Judge Conley wrote the judgment and reasons, even if they were plainly part of the decision making process. Nearly 12 months have elapsed since the members last discussed the case with Employment Judge Conley. We think there is a risk of injustice to one or both parties if Employment Judge Tynan tried to steer a discussion in relation to reasons that he was not responsible for producing in respect of evidence and submissions he did not hear and which are intended to give effect to discussions to which he was not privy. The Claimant’s second ground for his application is that at paragraph 161 of the Conley Judgment, the Tribunal misdirected itself by holding that any award of compensation must reflect its view that aspects of the Claimant’s conduct “doubtless contributed to the manner in which he was treated by the Respondent”. Whilst the Claimant asserts that this amounts to an error of law, in our judgment it is necessary in the interests of justice to reconsider the Conley Judgment as the hearing was to determine liability only (see in this regard the case management summary following the preliminary hearing before Employment Judge S Moore on 27 February 2024). The parties were not expecting to, nor invited to,

address any issues touching upon remedy. In our view the observations at paragraph 161 reflect an error in the course of the proceedings, that is to say an error at the point at which Employment Judge Conley prepared the judgment and reasons. We address that procedural error and the resulting unfairness to the parties by varying the reasons by removing the second sentence from paragraph 161 of the Judgment. Under his third ground for his application, the Claimant asserts that he is not seeking to introduce new arguments ie, that his application for reconsideration is not an attempt at a second bite of the cherry. Rather, he says, he “relies on facts already presented which demonstrate that: The judgment contains conflicting reasons and has ignored the contradictory statements of the respondent.” In effect he says that the decision was perverse. In our judgement, that is something to be pursued, if at all, on appeal. We do not understand him to have been given permission to pursue his appeal to the EAT on perversity grounds, save in so far as the alleged provision of inadequate reasons can be said to give rise to a potentially perverse decision. But even if we were with the Claimant, for the reasons in paragraph 20 above we do not consider that it would be in the interests of justice for this tribunal to revisit reasons produced by a different Employment Judge.

23. The Claimant says that the Respondent repeatedly failed to comply with case management orders prior to the final hearing (Ground 4 of his amended application for reconsideration). However, these are matters the Claimant was able to raise as appropriate at the final hearing. They do not provide grounds for this tribunal to reconsider the Conley Judgment.

24. Finally, the Claimant complains that the Respondent has repeatedly sought to pressure him by threatening costs applications against him. We Case Number: 3311224/2023 offer no view as to whether or not inappropriate ‘threats’ have been made in that regard. In our judgment this is not relevant to the issues we have to determine today. Approved by: Employment Judge Tynan Date: 17 October 2025 Sent to the parties on: 21 October 2025 For the Tribunal Office. 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. Recording and Transcription Please note that if a Tribunal Hearing has been recorded you may request a transcript of the recording, for which a charge is likely to be payable in most but not all circumstances. If a transcript is produced it will not include any oral Judgment or reasons given at the Hearing. The transcript will not be checked, approved or verified by a Judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ 7