England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Monday, 5th November 2001

1. LORD JUSTICE KEENE: There are before me two applications. In that which is numbered 2001/1184, Dr. Abegaze seeks permission to appeal against a decision of the Employment Appeal Tribunal dated 30th April 2001, whereby at what was supposed to be an inter partes hearing the Employment Appeal Tribunal dismissed Dr Abegaze's appeal. I say supposed to be because it was not in fact attended by the applicant, in circumstances to which I shall come. Secondly, in the application numbered 2001/1447, the applicant seeks permission to appeal against a decision of the Employment Appeal Tribunal promulgated on 13th June 2001, whereby it refused a review of its earlier decision.
2. What happened procedurally was this. The preliminary hearing of the applicant's appeal had been fixed for 30th April 2001. By a letter dated 29th April 2001 he sought an adjournment. He had earlier sent a doctor's certificate relating to the period 22nd March to 19th April 2001, and now he sent a certificate from St. Bartholomew's Hospital indicating that he was in hospital from 20th to 23rd April 2001. A letter from Homerton Hospital referred to him having an appointment with a consultant on 25th April 2001. The applicant's own letter of 29th April 2001 went on to say that he was an out-patient and was very sick. No medical evidence was produced indicating that Dr Abegaze was unable to attend the hearing on 30th April itself. The Employment Appeal Tribunal refused the application for an adjournment and dealt with the appeal in his absence.
3. The Tribunal considered the appeal on the documentation. It noted that Dr. Abegaze had been ordered at an early hearing to file an amended notice of appeal because his existing notice ran to some 20 pages and contained numerous matters which were irrelevant to an appeal. The Tribunal went on to point out that no amended notice had been filed in response to that order. It observed that on that ground alone the appeal could be struck out under Rule 26 of the Employment Appeal Tribunal Rules.
4. None the less, they had gone on to consider the existing notice of appeal but were unable from it to identify any sustainable argument that the Employment Tribunal was wrong in the decision which it made. Consequently they dismissed the appeal.
5. On 4th May 2001 the Employment Appeal Tribunal received a further letter from Dr. Abegaze, enclosing a copy of a letter from St. Bartholomew's Hospital dated 1st May 2001, saying that he had been discharged on 23rd April 2001 "but instructed to stay to strict bed rest for three weeks." This was the basis of Dr. Abegaze's application for a review of the earlier decision. The Employment Appeal Tribunal considered whether "the interests of justice require such review" - see rule 33(1)(c) of the Employment Appeal Tribunal Rules 1993. It decided that they did not. It is said at paragraph 5 of its decision of 13th June:

"The appellant had failed to comply with an order requiring an amended Notice of Appeal. Notwithstanding this failure, the Tribunal considered the appeal on its merits on the ground set out in the original Notice of Appeal. The Tribunal read all the voluminous accompanying documentation. It was unable to identify any error of law in the Employment Tribunal decision which was the subject of the appeal. The presence of the appellant at the hearing could not have made any difference to that outcome."

6. It refused to review its earlier decision.
7. All of this stems from an originating application made by Dr. Abegaze back on 5th November 1996. In it he alleged that he had been discriminated against on grounds of race, in that the respondent, British Telecommunications plc, had failed to offer him a job for which he had applied and for which he was extremely well qualified.
8. The proceedings had a long and complex history into which it is unnecessary to go for present purposes, but they culminated in a decision, promulgated on 27th September 1999, by an Employment Tribunal sitting at Bury St. Edmunds, whereby it set aside an earlier decision of its own and struck out Dr. Abegaze's application under Rule 13(2)(e) of the Employment Tribunal Rules 1993. That was on the basis that the manner in which the proceedings had been conducted by the applicant had been scandalous. It made various findings of fact to support that conclusion.
9. The Employment Appeal Tribunal's decision on 30th April 2001 not to adjourn the hearing was clearly one within that Tribunal's discretion. There was no clear evidence before it that Dr Abegaze was unable to attend. There was no doctor's certificate saying that and although there was evidence that he had been ill, it did not follow from that that he was unable to attend the hearing. Dr. Abegaze today has not really sought to challenge that decision.
10. The Employment Appeal Tribunal also had a discretion to refuse a review. Its exercise of that discretion could only be upset if it proceeded on a false basis or was clearly wrong. Dr. Abegaze submits that it was clearly wrong because the Employment Appeal Tribunal should have held that the Employment Tribunal had in its decision of 27th September 1999 gone wrong in law. He argues that the Employment Tribunal had had no power on that occasion to review its earlier decision because Rule 11(1) of the Employment Tribunal Rules 1993 did not apply. The Employment Tribunal had reviewed an earlier decision relying on Rule 11(1)(d), that is to say new evidence, and/or Rule 11 (1)(e), the interests of justice. The Employment Tribunal did hear fresh evidence which it found showed that the applicant had been dismissed by a previous employer rather than leaving voluntarily, as he had said in evidence before it, that he had removed a letter from the respondent's solicitor's bundle during the earlier hearing in order to obliterate the telephone number of his previous employer, that he had abused the respondent's solicitor and swung a punch at him and threatened to hit him, and that on a subsequent occasion he had used sexist and racist abuse towards a female solicitor employed by the respondent. The Employment Tribunal also found that the Law Society had advised the respondent's solicitor acting at the previous hearing to bring the applicant's conduct to the Employment Tribunal's attention after the hearing. Those were all findings of fact with which the Court of Appeal would not interfere. Dr. Abegaze contends in essence that it was quite wrong of the Employment Tribunal to take into account the new evidence that was produced before it when British Telecommunications sought the review. He argues that this was not truly new evidence because it was available at the time of the earlier hearing and so does not fall within Rule 11(1)(d). Moreover, he says that it was not relevant to the issues in the case.
11. Insofar as it is his contention that it was not new evidence, Dr. Abegaze stresses that the respondent had been aware before the original Employment Tribunal hearing of his previous employment. He accepts that they were not aware before that hearing of the fact that he had been dismissed, but he does draw attention to documentary evidence which shows that British Telecommunications did suspect that he had not been telling the truth and indeed that they had those suspicions before the hearing. He also draws attention to the notice of appeal by the respondent to the Employment Appeal Tribunal, a notice dated 12th May 1998, which begins at page 134 of the court's bundle. At page 138, as part of that notice of appeal, there is reference to the circumstances in which the respondent found out about Dr. Abegaze's previous dismissal. It is convenient to quote the relevant paragraphs B.2.4 and B.2.5:

"On the morning of 24th February 1998 Mr. Corry [the representative of British Telecommunications] was approached by a lawyer who told Mr Corry that [Dr Abegaze] had in fact been dismissed by Farnells, and further that [Dr Abegaze] had subsequently worked for a firm called 'IPR' who in turn had dismissed [Dr Abegaze] after a few weeks because he was unfit for his job.

Mr Corry approached [Dr Abegaze] prior to the hearing recommencing on 24th February 1998, and informed him that he intended to request that [Dr Abegaze] be recalled for further cross-examination in the light of this new information. [Dr Abegaze] responded by calling Mr Corry 'racist white trash', 'fucking bastard' and 'fucking stupid'. As a result of a highly abusive and threatening response from [Dr Abegaze] Mr Corry decided not to raise the matter with the Industrial Tribunal that morning, but rather to allow [Dr Abegaze] to continue to cross-examine [British Telecommunication's] witnesses."

12. Today Dr. Abegaze relies on that as indicating that, at least during the hearing itself before the Industrial Tribunal, British Telecommunications had evidence about his previous dismissal. Secondly, he contends that the evidence was not relevant because it did not go to the merits of the decision not to appoint him.
13. The hearing at which these events took place was one which began on 23rd February 1998 and continued on the 24th and was then adjourned. What did happen, in the light of the information which British Telecommunications had received, was that they sought and obtained an order that Dr. Abegaze produce at the resumed hearing any written material within his possession concerning the termination of his previous employment with a company in Leeds called Farnells. That order was complied with but was subsequently reconsidered by the chairman of the Industrial Tribunal and was rescinded. It is clear that British Telecommunications plc did have some awareness of this particular item relating to Dr. Abegaze's dismissal by Farnells during the course of the hearing. I have to bear in mind, as did the Employment Appeal Tribunal, that the Employment Tribunal has a discretion as to whether it admits fresh evidence. While there are certain well known principles that apply, those principles are not a straitjacket. The discretion which anybody such as a tribunal or a court has to admit fresh evidence is one which may be guided by cases such as Ladd v Marshall but is, at the end of the day, one to be exercised in the interests of justice.
14. The Employment Tribunal in this case, when it came to consider whether it should review its earlier decision, knew all the various facts which have been put before me today. It was aware of what British Telecommunications plc knew and did not know and what it suspected. It no doubt took the view that suspicion by itself was not a firm enough basis to make a specific allegation at the hearing in February 1998. During the hearing that company had some evidence about Dr. Abegaze's dismissal by a previous employer. The decision not to pursue it in the circumstances which I have described was perhaps an understandable one. Moreover, this dismissal was only one element in the various items of the applicant's conduct which were taken into account by the Employment Tribunal when it decided to review its earlier decision. It seems that it was the accumulation of those factors which led to the review by the Employment Tribunal. It does not seem to me that it can be said that the Tribunal erred in the way in which it exercised its discretion in relation to that new evidence.
15. Insofar as the argument that the evidence was not relevant, it is of course quite true that it did not go to the merits of the decision not to appoint Dr Abegaze to the post for which he had applied. But what it did go to was to his conduct during and in relation to the hearing and consequently to whether the proceedings should be struck out because of the manner in which those proceedings had been conducted. To that issue the new evidence and other evidence clearly was relevant. I can see no merit in that point.
16. Furthermore, the Employment Tribunal's decision to review and then to strike out Dr Abegaze's application was based on Rule 1(1)(e) as well because it concluded that a review was in the interests of justice. Such a tribunal always has a discretion to admit new evidence because that is in the interests of justice. In the circumstances, it seems to me that the Employment Tribunal was entitled to review its earlier decision and it did not make any error of law. In those circumstances I cannot see that the Employment Appeal Tribunal's decisions, which are now challenged, were based on any error of law or were even arguably so. I can see no prospect of success in this appeal. It would not be a kindness to Dr Abegaze to grant him permission to appeal in circumstances where the full appeal is one which he is likely to lose, with considerable financial consequences for himself. It follows from what I have said that these applications must be dismissed. Nonetheless, I would not want to finish without paying tribute to the calm and precise manner in which Dr Abegaze has conducted his application today.
Order: Application refused.