23 November 2023
Justice for Dennis Carabott
Demand that the Employment Appeal Tribunal reinstate his case
Attached are the motions for reconsideration that Dennis Carabott has submitted to both the East London Employment Tribunal and to the Employment Appeals Tribunal. The Employment Tribunal refused to even hear the substance of Dennis’ case against his wrongful termination for being an advocate for his co-workers and a strike leader. Stand with the fight of workers leaders in the strike movement.
Please sign the petition to demand Justice for Dennis and for all workers leaders who come under attack by management and the Council.
On 25 September, Dennis Carabott, a refuse workers activist and strike leader in Newham started his legal fight at the East London Employment Tribunal (ET) to win his job back. Dennis’ case was unlawfully shut down by ET lead judge Massarella. Dennis did not have an opportunity to present one speck of evidence from his overwhelming case against his illegal sacking by Newham Council. Judge Massarella sprang into action when he heard about Dennis’s strike leadership in Tower Hamlets. He broke every trial procedural rule in the book to claim the court had no jurisdiction and refused to hear the real substance of the case.
This is a test case; all workers, civil rights, and disability organizations should sign onto it. Judge Massarella violated the Equality Act of 2010 and ignored the measures and protections that all of us have fought so hard to win for workers, black people, people with disabilities and all the oppressed. Judge Massarella acknowledged that Dennis has dyslexia but instead of making any meaningful accommodations he used it as a weapon against him (for details see the attached brief). In addition, Massarella declared as facts things that were untrue and there was no evidence for. The employer conceded two years ago that the case was on time. But at the last minute the Newham Council Barrister produced an unverified email notice which the judge let her use to stop the facts of the case from being heard. The ET’s decision is disgraceful. Rather than making any pretense of offering justice to workers, the tribunal is instead helping the Tory government and local Labour-controlled councils to shut down the public workers strike movement that began last year.
Dennis is now appealing against the decision to the Employment Appeal Tribunal (EAT). But he needs more than the action of a higher court to win. He needs the support of Newham refuse workers, Tower Hamlets workers, and the entire community of Newham and Tower Hamlets to move forward. Attached is the motion for reconsideration that Dennis has submitted to both the Employment Tribunal and Employment Appeal Tribunal. Call on the Appeals Tribunal to hear the case and stand with the fight of workers leaders in the strike movement.
Therefore we the undersigned:
1. Call for Justice for Dennis Carabott Now
2. Demand Newham Council reinstate Dennis Now
3. Demand that the Employment Tribunal and Employment Appeal Tribunal reinstate Dennis’ case
Initiated by The Strike to Win Committee and Movement for Justice
https://www.gopetition.com/petitions/justice-for-dennis-carabott.html
MOTION FOR RECONSIDERATION
10 November 2023
To: Employment Judge Massarella,, Panel members: Ms C. Edwards & Miss N. Murphy & East London Regional Employment Judge
We are requesting that the decision to reject our request for reconsideration and/or the decision not to hold a hearing on our motion for reconsideration, be reconsidered.
1. Claimant asks the Tribunal to accept this appeal to its decision rejecting Claimant’s 27 October 2023 Motion for Reconsideration for the cause of Justice to be served. Claimant recognizes that this an extraordinary request, in part, because it is appealing to the Tribunal to exercise its power to sua sponte change its decision to rectify what would otherwise be a miscarriage of justice. See Rule 73 of the Employment Tribunals Rules of Procedure.
2. This appeal is being made within the 14 day window prescribed as the time period for appeal of Tribunal decisions stated in The Employment Tribunal Rules of Procedure Point 13, Point 19, and Point 70.
3. First, the Respondent sent the claimant a doctored version of the already suspect email from 10 July 2020. Respondent sent the Tribunal a copy of the email that included 4 attachments. The butchered version of the email sent to claimant eliminated 3 of the 4 attachments included in the alleged original email.
4. Only the attachment containing the dismissal letter was included in what the claimant received as a copy of the purported newly discovered email. This prejudiced claimant’s ability to argue that even if he had received the email, which was never proven to be sent or received, he would never have been able to get through the scores of pages in the email attachments without the help of his union-appointed support person.
5. No one contended or produced evidence to show that Mr. Carabott and Mr. Owolade talked prior to Monday 13 July 2020. Obviously, there would have been no way for the claimant and his wife, together, to understand the breadth of the material contained in the alleged original email. One or both would have tried to reach Mr. Owolade.
6. Section 2 of Newham Council Disciplinary Procedure states that after an investigation of a disciplinary matter has occurred:
“The employee will be informed as soon as possible as to the facts of an investigation and when it has been concluded. This can be done face to face and will also be confirmed in writing.”
(P. 714 of ET Document Bundle)
When a decision is made after the conclusion of the disciplinary hearing, the same process is to be followed:
“As soon as possible after the conclusion of the disciplinary proceedings, the chair will convey their decision to the employee and will also inform the employee what disciplinary action, if any, to be taken. The decision will be confirmed in writing in 10 working days. The employee will be notified in writing of his/her right to appeal under the procedure.”
(P. 717 of ET Document Bundle)
Newham Council violated its own disciplinary policy by not verbally informing Mr. Carabott face to face of the outcome of his disciplinary hearing 10 days prior to issuing its written decision. There was no permission in Mr. Carabott’s contract of employment stating that Mr. Carabott could be informed of the termination of his contract by email. Dennis was never informed in person or over the phone or Skype what the decision would be, which would have given him a much longer opportunity to file with ACAS.
7. Nothing in the policy states that any disciplinary communications can be made by e-mail. The Employment Rights Act 1996 (ERA is silent on the issue of when email notifications constitute effective service. The ET procedural rules are inapplicable to communications which occur prior to the commencement of ET proceedings.
8. However, Section 6.3(6) under Practice Directive 6A-Service of Documents says,
“Subject to the provisions of paragraph 7 below, where a document it to be served by electronic means,
(a) the party who is to be served or that party’s legal representative must have previously expressly indicated in writing to the party serving
(i) that he or she is willing to accept service by electronic means, and
(ii) the fax number, email address, or electronic identification to which it should be sent.”
Claimant’s representative, as stated in paragraph 49 of the Employment Tribunal Decision, provided evidence showing that Mr. Owolade specifically requested that emails be sent to Mr. Owolade, stating, “can you send a hard copy of the documents requested to Dennis home address to and to me via email.” Newham Council honoured and complied with this request, except that they did not send the 10 July 2020 email to Mr. Owolade, but they did send Mr Carabott’s copy of the decision to his home address on 10 July 2020 that arrived on 13 July 2020. 9. The Tribunal was aware that claimant was at a disadvantage because he was being represented by the only lawyer he could get who was from the U.S..The claimant’s counsel could only participate in the hearing proceedings via the internet and could only receive claimant’s instructions via phone. Claimant’s counsel was unfamiliar with many of the procedural and legal standards set out in the ERA and the ET. This resulted in her being mistaken in thinking that the Tribunal would naturally take responsibility for testing out the reliability of the email evidence. This misunderstanding was compounded by the assumption that the Tribunal would take notice of the fact that up to this point, all of Mr. Carabott’s email exchanges with management regarding his employment included Mr. Owolade, his union-appointed support person, who was consistently cc’d by explicit request. However, for this email communication, regarding the outcome the disciplinary hearing, Mr. Owolade was not cc’d, even though another member of the management team, Cheryl Graham, who had also been consistently cc’d in email communications regarding Mr. Carabott’s employment was cc’d in the 10 July email. Once again, Mr. Owolade was not.
In one of the emails referred to by Claimant’s counsel, Cheryl Graham is described by Mr. Humphries as the strategic HR business partner who participated in the disciplinary proceedings of claimant to “provide advice on policy, procedure and employment matters” to Mr. Humphries. Therefore, even if it might have seemed, by some stretch of the imagination, plausible that Mr. Humphries did not do a search of his emails using Mr. Carabott’s name during the disclosure process, it would have been truly remarkable that Ms. Graham would not have included this email in her collection of disclosure emails to Respondent’s counsel had she received it.
10. Claimant’s counsel takes responsibility for any mistakes or misconceptions that can be attributed to her ignorance, still, it does seem remarkable that the Tribunal held that it was a fact that Mr. Carabott received and read the 10 July email without even questioning the veracity of Respondents’ claim that suddenly and conveniently it was only discovered after the hearing commenced.
11. The Tribunal took only one action to verify the authenticity of the email, and that was to ask Mr. Carabott’s wife to look through his phone to determine if and when the email was received. No email was found in Mr. Carabott’s phone. That should have ended the inquiry, and the email should have been rejected as unreliable evidence.
12. In the alternative, the hearing could have been adjourned to give Mr. Carabott a fair opportunity to examine his emails to either confirm receipt or non-receipt of the email, and to get an expert witness to review the email. Now that Claimant has provided evidence that Respondent blithely altered the e-mail it submitted to the claimant, a more fulsome investigation on the authenticity of the email is warranted.
13. Once the Tribunal decided that it did not need to explore the reliability of the email, the Tribunal placed the burden on the claimant to show that he did not have a reasonable opportunity to read the email. But the burden should have been placed on the Respondent to prove that the email was sent, received and opened by the claimant as set forth in Barton v Wright Hassal LLP Supreme Court 2018.
14. Mr. Carabott never conceded that he knew of the e-mail or its contents before 13 July. However, once he was placed in the onerous position of having to defend his actions, because he is dyslexic, he was certain to feel like he was in a hostile environment and being bullied. From his standpoint, it seemed like the Tribunal had no misgivings in accepting the Council’s fantastic lost email claim, but refusing to believe him.
15. The longer the hearing went on, especially after the public spectacle of his wife and son being tasked to look through his emails and WhatsApp messages because he was not capable of doing those seemingly mundane tasks, Mr. Carabott was humiliated on the witness stand.
16. It was virtually inevitable that he would start sounding inconsistent and doubting himself. The judgement failed to recognize the importance of the Good Practice Guide for Justice Professionals guidance which calls on justice professionals to take into account the effects of stress for those who have dyslexia, cautioning that in hearings inconsistencies could appear to imply untruthfulness. This judgement contravenes that guidance and instead makes just such difficulties central to the finding.It found that Mr. Carabott’s testimony that he did not read the dismissal notice until it was delivered by post on Monday 13 was unconvincing. The basis for this was reliance on verbal court interrogation and cross reference to years old documents under the stress of a last minute discovery of an email notification of dismissal. Instead of taking into account Mr. Carabot’s dyslexia, the finding hinged on the minor inconsistencies under pressure of Mr. Carabott’s testimony to justify a finding that had no evidence in the record; that he read and understood the email on Saturday night.
17. The Tribunal raised the question of the evidence from 2021 attached to the Council’s second attempt to get Mr. Carabott’s claim thrown out as being out of time. This caused some confusion because the central issue of the 27 September 2023 hearing was the receipt and reading of the email, not on when Mr. Carabott tried to file his claim with ACAS. It is correct to say that on the subject there were differences between Mr. Carabott’s 26 October witness statement.
18. But it is also true that Mr. Carabott was given far too little time to go through the “voluminous” record of this case before he prepared his witness statement. His witness statement had to be drafted from memory. This is a dubious proposition for anyone to do three years after an event occurred. For someone who is dyslexic it is an understandable near impossibility.
19. The Tribunal is correct, changing claimant’s statement after it was filed, put him in danger of a finding that he lacked credibility. The whole hearing process needed to be slowed down. That decision should have been taken by the Tribunal independently.
20. Mr. Carabott has a strong case for unfair dismissal against Newham Council. For this claim to be thrown out based on unreliable evidence would be a terrible miscarriage of justice. The Employment Tribunal Procedural Rules Section 2A and B emphasise that it is the duty of the Tribunal to ensure “that the parties are on equal footing,” which requires “dealing with cases in ways which are proportionate to the complexity and importance of the issues.” Claimant is asking the Tribunal to exercise its duty and right to employ flexibility of the rules to ensure a just outcome. Claimant therefore respectfully asks this tribunal to reconsider its decision to reject his motion for reconsideration and begin the substantive part of his case.
TO THE EMPLOYMENT APPEAL TRIBUNAL
13 November 2023
Appellant: Mr. Dennis Carabott
Respondent: London Borough of Newham
GROUNDS OF APPEAL
Ground 1 – Error of law in that Tribunal reached a decision of fact for which there was no evidence.
Claimant never conceded that he received the email on 11 July 2020 and no evidence was presented showing otherwise. The letter of termination that arrived on 13 July 2020 should be treated as precedent for Claimants date of termination based on the following:
1. Respondent conceded at two prior Tribunal proceedings, that the letter claimant received on 13 July 2020 notified Claimant of his dismissal. Respondent provided 3000 pages of disclosures including a vast number of emails that were sent by or to David Humphries, who drafted and mailed claimants dismissal notice but none contained this email.
2. Reliability of evidence. Respondent claimed that Mr. Humphries allegedly discovered the email for the first time when he conducted a search of his emails using claimants name after the first day of the hearing. Human Resources manager Cheryl Green was cc’d on the email. It is extremely unlikely that she also failed to produce this email if it existed. The email was not in the evidence filed in 2021 by the Respondent to strike the claim for out of time. Respondent conceded that it was timely filed without going to a hearing. Claimant questioned the reliability of the evidence, but the Tribunal only took one action to authenticate it. Claimant was asked to look through his emails on his phone to see if he received the email. He did not find the email on his phone at the hearing. Claimant was not given the opportunity to see if the email had been deleted.
3. Failed to properly apply Greenclose Ltd v National Westminster Bank plc [2014] EWHC 1156 (Comm) which put the onus on the sender to ensure that email communications were received, noting that the burden on the sender is not particularly onerous. Respondent offered no evidence to substantiate that the email was sent by the respondent at the date and time listed on the email.
4. Failed to properly apply Bernuth Lines v High Seas EWHC 3020 Comm: 21 December 2005. Unlike telex messages and fax messages, emails can not be assumed to be delivered instantaneously, especially without the claimant’s agreement. Stating that if the sender does not require confirmation of receipt, he may not be able to show that receipt has actually occurred. Respondent offered no evidence confirming when the email was delivered, showing that it was opened or read. There was no request for confirmation of receipt on the email even though this was considered best practice for employers and respondent had human resources consultants involved at every stage of claimants discipline and termination.
Ground 2 -Error of law in applying the legal test as determined in Gisda Cyf v Barratt UKSC 41 and in Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood.
In these cases there is a consistent approach taken by the EAT in prioritising justice and flexibility for the claimant.
1. Tribunal erred when it rejected using the individualised reasonably practicable test. The claimant’s dyslexia was accepted as a fact. Assuming in arguendo that claimant received the email between 10-12 July 2020 and opened it with his wife’s assistance, one of them would have called his UNITE support person, because the email contained four attachments totaling hundreds of pages. The dismissal notice alone was 9 single spaced typed pages.
2. Claimant’s wife could not assist him in absorbing the content of the email without consultation with claimant’s support person. If claimant’s support person was not reachable during the weekend, the first opportunity claimant would have had to read and understand the content of the email would be on Monday 13 July 2020 the same day he received the written notice.
3. Claimant’s support person requested that Respondent send correspondence to the claimant by post. Respondent honoured this request. Claimant relied on his support person to tell him when to check his email for important information. This did not and could not happen between 10 July-12 July 2020 because this was the one and only purported communication from the Council not sent to the claimant’s support person.
4. There is no evidence in the record that claimant expected to receive his dismissal notice on or about 10 July 2020 via email or through the post, given that numerous delays and missed deadlines had occurred through his disciplinary process that had been ongoing for more than a year.
5. Claimant never agreed to email service of a decision letter or conceded that he received the email on 11 July 2020 and no evidence was presented showing otherwise.Therefore the notification sent by post should take precedence given that there is no evidence confirming delivery of the email, an essential and necessary prerequisite to determining when claimant read his notice of dismissal or had a reasonable chance to do so.
6. Given the importance of the question of the timing of the email to this case, and claimant’s questioning the veracity of Respondent’s claim that the email was suddenly discovered, the Tribunal should have adjourned the hearing until claimant had an opportunity to have an expert examine Respondent’s computer.
Ground 3 – Failed in the decision to properly apply the Equality Act 2010 Part 11 (149) and the Tribunal’s Practice Notice on Accommodations in the Tribunal Proceedings.
1. Public sector equality duty (1) A public authority must, in the exercise of itsfunctions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act. The Employment Tribunal failed to do this in Mr. Carabott’s case.
2. Claimant required an opportunity to rewrite his witness statement after the Tribunal had recovered the documents filed prior to the 2021 timeliness hearing because neither he nor his counsel had access to those documents prior to drafting his statement and his disability prevented him from reconstructing what had occurred three years earlier without access to written materials. It was virtually inevitable that he would start sounding inconsistent and doubting himself.
3. The judgement failed to recognize the importance of the Good Practice Guide for Justice Professionals guidance which calls on judges to take into account the effects of stress for those who have dyslexia, cautioning that in hearings inconsistencies could appear to imply untruthfulness. This judgement contravenes that guidance and instead makes just such difficulties central to the finding. It found that Mr. Carabott’s testimony that he did not read the dismissal notice until it was delivered by post on Monday 13 July 2020 was unconvincing. The basis for this was reliance on verbal court interrogation and cross reference to years old documents under the stress of a last minute discovery of an email notification of dismissal. Instead of taking into account Mr. Carabott’s dyslexia, the finding hinged on the minor inconsistencies under pressure of Mr. Carabott’s testimony to justify a finding that had no evidence in the record; that he read and understood the email on Saturday night.
Ground 4 – Failure to grant reconsideration or hearing on reconsideration.
1. Claimant provided the Tribunal with new evidence of material importance to his case. Claimant provided pictures that he had sent to his support representative through a WhatsApp message. It was not possible to provide the date the pictures were sent because of the way that WhatsApp copies messages/pictures. Most importantly claimant provided the Tribunal with new evidence documenting that he had attempted numerous times to file a claim with ACAS on 9 October 2020 but was prevented from doing so because he did not receive the help he was entitled to from ACAS. Claimant was not responsible for receiving false information and no services from ACAS.
Ground 5- Perversity
We are asking the court to consider the grounds 1-4 above and the points made in our two reconsideration motions attached.
Requested order is that the EAT find the case is timely and send it to a new Employment Tribunal to hear the substance of the case.