United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 28_93_0912

Appeal No. EAT/28/93

EAT/490/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9th December 1993

Before

THE HONOURABLE MR JUSTICE TUCKER

MISS A MACKIE OBE

MR S M SPRINGER MBE

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MILLER DRUCK INTERNATIONAL LTD          APPELLANTS

MS J DENNIS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR S WEISBARD

(Solicitor)

117 Beaufort Park

Falloden Way

Finchley

London

NW11 6BY


 


MR JUSTICE TUCKER: There are two matters before us arising directly or indirectly from a decision of the Industrial Tribunal sitting at London (North) on the 12th November 1992, whereby it was decided that the Applicant had proved that the Respondents, the present Appellants, had discriminated against her on the grounds of her sex.

Notice of Appeal was entered against that decision on the 7th January 1993. We first have to consider whether the grounds set out in that Notice are sufficient to give rise to an arguable case which ought to go forward to a full hearing. We take the view that they are not. Although the grounds in the Notice of Appeal are expressed as amounting to an error in law they amount, in reality, to criticism of the Tribunal's evaluation of the evidence. We are not empowered to conduct a review of the evidence or to form our own view upon the evidence adduced before the Industrial Tribunal. That Tribunal is the industrial jury or fact finding Tribunal. We are not. We are not empowered to interfere on questions of fact unless it can be demonstrated that the Tribunal acted perversely, in other words, that it made findings of fact which no reasonable tribunal, properly directing itself, could have reached. That is not the case here and it is not said to be the case here. What is alleged under the guise of an error in law is the Tribunal failed to have regard to all the evidence. That is a different question altogether, and in our opinion there is nothing in the grounds of that appeal which justify sending the matter forward for a full hearing and accordingly we dismiss that appeal.

The second matter relates to an application which the Appellants made to the Industrial Tribunal on the 16th December 1992 seeking a review of the decision by the Tribunal itself. After a further hearing which took place on the 12th May 1993 the same Tribunal presided over by the same Chairman and comprising the same members as before gave Full Reasons for refusing that application. The grounds of the application were that fresh evidence had become available.

Of course the Tribunal has power to review its own decision. That power is contained in Regulation 10(1) of the Industrial Tribunals (Rules of Procedure) Regulations 1985 Schedule 1. The Regulation is in these terms:-

"A tribunal shall have power to review and to revoke or vary by certificate under the chairman's hand any decision on the grounds that -

. . .

(d) new evidence has become available since the conclusion of the hearing to which the decision relates provided that its existence could not have been reasonably known of or foreseen; or

(e) the interests of justice require such a review."

The question is whether we have power to entertain an appeal from such a decision.

The statutory provision governing appeals to this Tribunal is contained in Section 136(1) of the Employment Protection (Consolidation) Act 1978 which provides:

"An Appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under, or by virtue of . . ."

then a number of Acts the Sex Discrimination Act 1975 among them and there are rules contained in the Employment Appeal Tribunal Rules 1980.

There is nothing that we find in the Statute or in our Rules which empower us to entertain an appeal against a decision of an industrial tribunal to conduct a review of its decision and certainly nothing which could empower us to require the Tribunal to do so. Indeed, returning to the provisions of Regulation 10 of the Industrial Tribunals (Rules of Procedure) Regulations 1985 it is to be observed that the provision gives the tribunal a discretion or power to review its decision. That is a discretionary and not a mandatory provision. If the Tribunal chooses not to exercise its power there is no authority in this Appeal Tribunal to oblige it to do so. It is an interesting point and we adjourned this morning's hearing in order to give Mr Weisbard, who appears, as he appeared before the Tribunal, an opportunity of further researching the matter. He has not been able to point to any specific statutory provision which gives us the power which he claims we have and we decline to exercise such a power. In our view we do not have power to review again as it were, or to enquire into, or to entertain an appeal against, the decision of the Tribunal not to conduct a review.

Accordingly, this purported appeal from that decision is itself dismissed.