United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 993_93_1309

Appeal No. EAT/993/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 September 1994

Before

HIS HONOUR JUDGE J HICKS QC

MRS M L BOYLE

MISS J W COLLERSON

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LINCOLN (UK) LIMITED          APPELLANTS

MR R DENNIS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR A KORN

(Of Counsel)

Messrs Dibb Lupton Broomhead

125 London Wall

London

EC2Y 5AE

For the Respondent MR J ALGAZY

(Of Counsel)

Messrs Emsleys

Solicitors

35B Main Street

Garforth

Leeds

LS25 1DS


 


JUDGE HICKS: The Applicant, Mr Dennis, who is the Respondent to this appeal, was employed by the Appellants, Lincoln (UK) Limited, from 5 January 1987 until 3 April 1992, and was a Sales Manager of their Industrial Division. He was dismissed and applied to the Industrial Tribunal for compensation on the basis that that was an unfair dismissal.

The Industrial Tribunal at the hearing of that application dismissed it, and in their Reasons they say in paragraph 6:

"There was a considerable conflict of evidence in this case and at the end of the day we found that by and large we preferred the evidence of the Respondents to that of the Applicant. We have used the usual test of the balance of probabilities to establish the facts in this case which are as follows".

Then they set out their findings of fact in full detail. We note only, for present purposes, that in paragraph 23, dealing with a meeting which took place on 29 January between the Applicant and a Mr John Reilly, one of two Messrs Reilly who effectively seemed to have run the employing company, they say:

"We heard evidence of that meeting and it was an example of where there was a strong conflict of evidence",

which they then reviewed and rejected the Applicant's version. Again, in paragraph 31, they record that throughout his evidence the Applicant denied having received most of the letters shown in the bundle of documents relating to his poor performance, those being letters which the employers relied upon as showing that they had given due warnings of their complaints about his performance before the ultimate dismissal. The Reasons go on:

"He claims that he only saw them for the first time about two weeks before the date of this hearing",

and it is not in dispute that discovery of documents by the employers, which had been ordered by the Tribunal at an interlocutory hearing, and should have been complied with by 14 April, was in fact only complied with some two weeks before the hearing on 19 July 1993. The Tribunal go on to deal further in paragraph 31 with how that allegation was developed, and persisted in by the Applicant, throughout the hearing.

In paragraph 32 they say:

"Having considered the matter carefully we do not accept that the letters were not written at the time when they purport to be written and we reject the suggestion that they were created recently in order to mislead us. We find there is no substance in these allegations. Additionally, as we have already indicated, we find that the Applicant's evidence was not reliable in many respects".

They go on to find that the reason for the dismissal was performance, or non-performance, and to consider whether the decision was that of a fair employer, and say that they find in favour of the employers.

What is apparent from those extracts from the Reasons is that this was not a case where the credibility of witnesses was a peripheral matter. There is not only a sharp conflict between the evidence of the Applicant and of the two persons who through a company were effectively his employers; where the Applicant's case involves allegations that a whole series of letters were, in effect, forgeries it is quite plain that credibility is, and was, and an Industrial Tribunal plainly regarded it as, a matter of central importance.

Following the rejection of his Application, the Applicant then made an application for review. At that stage, although he had been represented at the hearing for the Industrial Tribunal, and was again represented at the hearing of the application for review and before us, he was acting in person, and the written application for a review is not in lawyers' language, but there is no dispute that it was, in effect, an application for a review under the terms of what was then Rule 10 of the 1985 Rules of Procedure Regulations, and in that he referred to a number of matters of effectively fresh evidence which he wished to rely upon, and attached a number of documents.

That application for review was granted by the Industrial Tribunal, constituted by the same members who had heard the original application, and it is against the grant of that application for a review that the employers now appeal. Although it may not be, and indeed in our view is not, entirely clear on the face of Rule 10 whether separate hearings of the application and of the review itself are contemplated, that is the way in which it was dealt with here, at the request effectively of the employers, who complained that they had received documents too shortly before the date fixed for the hearing of the application to deal with a substantive review, although they were content to meet and deal with the application itself.

There had been, on the face of it, some earlier consideration of the matter by the Chairman of the Tribunal, which is of some relevance to a point to which I turn in dealing with the grounds of appeal because (taking those grounds out of the order in which they are set out in the Notice of Appeal, but I think in the order in which they were argued, and certainly in a convenient order) one of those grounds was (d), that the Industrial Tribunal erred in law in that the application should have been determined by a Chairman sitting alone, pursuant to Rule 10(3) of the Rules, I think it must mean, not by the full Tribunal.

Rule 10(1), which it is convenient to read now is:

"The Tribunal shall have power to review and to revoke or vary, by certificate under the Chairman's hand, any decisions on the grounds that - [(a), (b) and (c) are not relevant to the present case]

(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) [that the interests of justice require such a review].

Then paragraphs (3) and (4) of Rule 10:

"(3). an application for the purposes of paragraph (1) of this Rule may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success.

(4). If such an application is not refused under paragraph (3) of this Rule it shall be heard by the tribunal which decided the case .......",

and then there are alternatives which do not arise in the present instance.

That ground of appeal we can dispose of very shortly, because it was in the end abandoned by Mr Korn on behalf of the Appellants and we are satisfied that it was rightly abandoned and could not have succeeded. To put it shortly, it is quite plain that although the Chairman or one of the other persons named can refuse the application, if it in his opinion it has no reasonable prospect of success, that is not a necessary stage in the proceedings. Unless he does so it goes to a hearing, as happened in this case, by the Tribunal which decided the case.

I take next ground (a), which is whether the Industrial Tribunal erred in law in paragraph 9 of its decision in that it failed to state in its reasons whether the application was being granted under Rule 10(1)(d) or Rule 10(1)(e) of the relevant rules, and therefore failed to direct itself properly in law as to the proper test to be applied under said provision.

Paragraph 9 of the reasons referred to there reads as follows:

"Having considered the matter in detail, we are unanimous in our conclusion that some of the matters now raised before us, which we are satisfied were not available at the date of the hearing and could not have been obtained by the Applicant with reasonable diligence, might have been significant in considering, as we had to at the time, the credibility of the parties where there was a conflict of evidence. For those reasons, we find that there was fresh evidence before us today which justifies us in granting this application for a review and that it is in the interests of justice to grant the application in this case. The review will not be limited to the two main items which we have dealt with in this decision".

And then they proceed to grant the application.

It is apparent, in our view, that so far from not stating whether the application has been granted under Rule 10(1)(d) or Rule 10(1)(e) the Tribunal was saying quite plainly, by virtually repeating the words of those two rules, that they were granting the application under both of them, and it is equally apparent to us that by summarising the matters about which they would have to be satisfied in order to review on the grounds of fresh evidence they were directing themselves properly in law as to the proper test to be applied. It is true that they do not give any further elaboration of the test to be applied under rule 10(1)(e), "in the interests of justice", but that is a broad ground and it seems to us clear that they are taking into account, for that purpose, the whole of the facts which they have previously set out. We do not therefore consider that that ground of appeal is established.

We next take (e), which complains that the Tribunal erred in law in holding that the review would not be limited to the two main items referred to by the Tribunal, and/or in refusing to limit the review hearing to the facts and matters relied upon by the Applicant's representative at the preliminary hearing, in the light of the representative's concession that the other matters the Applicant referred to in his letter of 16 August (that is, effectively, the notice of application for review) were insufficient to justify a review.

Mr Algazy tells us that he made no such concession, but we do not think that any dispute about that is really of any relevance. The issue here is whether the provisions of Rule 10 are in fact apt or appropriate, or make it practicable, to confine a review once undertaken to particular points in the way that this ground of appeal suggests. One asks how that could work in practice, and I think Mr Korn was constrained to confess that he saw the difficulties of such an exercise, and it seems to us plainly that once a Tribunal has decided to review its decision it is bound to review it as a whole in order to be able to exercise its power under Rule 10(1), which is either to sustain it or to revoke or vary it. It is not as if it were an appellate tribunal which could decide, for some specific reason, that there was something wrong and then remit it to another body to reach the right decision. It certainly has the power and perhaps the duty to reach, and in all normal circumstances does on a review reach, what it regards as the proper and just decision on the substance of the original application, and we fail to see how that can be properly and justly achieved without considering the whole matter. We reject ground (e) of the Notice of Appeal.

That leaves grounds (b) and (c), which are parallel, one relating to Rule 10(1)(d) and one relating to Rule 1(e). In relation to Rule 10(1)(d), in ground (b) of the Notice of Appeal, the complaint is that the Industrial Tribunal erred in law in reaching its decision, in that it failed to direct itself in accordance with the principles laid down by the Employment Appeal Tribunal in Wileman v Minilec Engineering Limited [1988] IRLR 144, in that it did not consider adequately, or at all, or give proper reasons for concluding that the evidence relied on by the Applicant in support of this application could not have been obtained with reasonable diligence at the hearing on 19 and 20 July 1993 and/or that its decision was perverse, and there is a parallel allegation in relation to Rule 10(1)(e) of failing to direct itself in accordance with the principles laid down in General Council of British Shipping v Deria & Others [1985] ICR 198 and in failing to give reasons or proper reasons for concluding that the circumstances were exceptional and, again, an allegation in the alternative that its decision was perverse.

Although there are allegations there of failing to consider, or direct itself properly or at all, and of perversity (which was not, I think mentioned at all in argument), the substance of these grounds as developed by Mr Korn was really confined to the complaint of failure to give proper reasons, and indeed it was the burden of his complaint about that, that the Appellants are not in a position to know whether the decision itself properly arrived at in law, without knowing what reasons the Industrial Tribunal had, and it is on that basis that we address it.

It is to be noted that although, in argument, Mr Korn dealt not only with the question of "reasonable diligence" but also with the other elements of what is required for the adduction of new evidence the only ground relied on in the Notice of Appeal is the point whether the evidence could have been obtained with reasonable diligence at the hearing.

As to that, it is necessary to see what the Industrial Tribunal said in their Reasons for acceding to the application. In paragraph 3 of their Reasons they re-emphasise, as we read them, the centrality of the issue of credibility as between the Respondent's witnesses, primarily Messrs Reilly, and the Applicant, and then they go on in paragraph 4:

"Today there were produced before the Tribunal a number of documents which, it was argued, might be germane to a fresh consideration as to whether or not the Applicant's evidence could be supported by new evidence not then available at the hearing. First of all, we noted that at the July hearing, Mr Brian Reilly said on oath that the Applicant failed to achieve any sales whatsoever in January, February and March 1992. The Applicant is now able to produce documentary evidence from Network (North East) Ltd showing that the Respondents received an order dated 18 March 1992 for a lubrication system for Blyth Power Station 'as designed by Mr Ray Dennis'. Attached to that copy order is a letter of 10 August 1993 from Network (North East) Ltd to the Applicant confirming that after the order was placed there was a query and when the company phoned the Respondents to speak to Mr Dennis, no one there would tell the company where he could be contacted".

And in paragraph 5:

"Also before us was a letter from a Mrs Middleton dated 27 July addressed to the Applicant and that refers to two matters which were in dispute at the July hearing. The one which this Tribunal finds significant relates to Mrs Middleton's statement that on 24 February 1992, she was present at the Banbury branch and when she arrived at 1200 to start work, the Applicant was already there. He left soon afterwards to catch his train and at that stage, according to Mrs Middleton's letter, neither Mr John Reilly nor Mr Brian Reilly were present. They arrived apparently 'as usual about 2 pm'".

And in paragraph 6:

"We were referred to a document which had been produced at the hearing in July which purported to be a note of a meeting on 24 February 1992 and written by Mr Brian Reilly. When we checked that with the Chairman's note of evidence taken at the hearing in July, we saw that Mr Brian Reilly said that he could not remember driving down to Banbury on that day, but he flew down arriving at the office at 1100. He then said that the document shown to us at the time was a note which he made of the conversation that he had with the Applicant".

And then in paragraph 7 they refer in general terms to "....other points where there were apparent discrepancies" which were not, it would appear, gone into in detail by Mr Algazy on behalf of the Applicant and were relied upon, as it were, for their cumulative effect rather than for their individual importance.

Paragraph 8 summarises Mr Korn's objections and then paragraph 9 I have already read.

In relation to the grounds of application for a review under Rule 10(1)(d), the Rule itself requires that the existence of the evidence could not have been reasonably known of or foreseen. The case of Wileman referred to in the Notice of Appeal establishes that the tests which apply in the Court of Appeal under the leading authority of Ladd v Marshall [1954] 1 WLR 1489 are relevant here also, and that the evidence must also be relevant and probative and likely to have an important influence on the result of the case.

It also uses, in relation to that evidence, or certainly Ladd v Marshall does, the phrase used in paragraph 9 of the Tribunal's reasons, about whether the evidence could have been obtained "with reasonable diligence". It is not, as we understand it, disputed by Mr Korn on behalf of the Appellants that although paragraph 9 does not repeat the precise words of Wileman in that respect, it substantially sets out the same test, and indeed his complaint of lack of reasons is really that that is what the Tribunal does and no more, that it states the conclusions which have to be reached rather than the reasons for reaching them.

As to the necessity of giving reasons, Mr Korn reminds us first of all of the well-known case of Meek v City of Birmingham Council [1987] IRLR 250, in which the headnote which he suggested adequately summarised the decision (and I do not think that is in dispute) includes these sentences:

"The parties are entitled to be told why they have won or lost. There should be a sufficient account of the facts and of the reasoning to enable an appellate court to see whether any question of law arises"

And that is in the context of other expressions, one of which Mr Algazy reminded us of, that the reasons are not required to be an elaborate, formalistic product of refined legal draughtsmanship.

Mr Algazy's submits that in some sense, which we had a little difficulty in precisely identifying, that decision is to be applied in a modified way to interlocutory proceedings, but Mr Korn referred us to Independent Research Services Limited v Catterall [1993] ICR 1 in which it was held that, and again I read from the headnote:

"The parties were entitled to know the reason for their success or failure on an interlocutory hearing as much as on the final one".

There is a further reference to the fact that in that particular case there had been skilful argument on a difficult point but that, as we understand it, is a supplementary observation; the substance of the decision is in the words which I have read, and which we accept. Mr Algazy is of course entitled to take advantage of the fact that in the judgment there, there is this sentence:

"True it is that in an interlocutory decision one would not seek for any great detail and we take that into account".

We accept that paragraph 9 of the Tribunal's reasons, taken alone, would not amount to adequate reasons for their decision. It does, we think, as Mr Korn puts it, accurately express the conclusions which they need to reach, but not the factual grounds upon which they do so. One is not, however, confined to paragraph 9 and paragraphs 4, 5 and 6 in particular set out the background to the two particular matters which the Tribunal specifically relied upon in more detail, and that also can be taken into account. But if matters stood there, it might well be that the reasons would still be inadequate.

We are quite satisfied that if that were the case and matters rested at that point, that the right course and the proper course in the circumstances of this case, would not be either to reach a decision ourselves on the application for a review, because we manifestly have not the basis on which to do so, or to remit to any other Tribunal or body, or indeed to remit to this Tribunal for a general re-hearing of the application. The only complaint which would have been established had, as I say, we paused at this point, would be simply the failure to articulate reasons and it is, as we understand it, plain (and the statement to this effect is at paragraphs 1005 to 1010 of Harvey's Industrial Relations) that in such circumstances the matter can be remitted to the same Industrial Tribunal with a direction to amplify its findings or reasons.

We ask ourselves whether that is, in the circumstances, appropriate or necessary, given that in our view, taking into account not only paragraphs 4 and 5 of the Reasons given on the application to review, but also what we understand to be undisputed facts about the course of the original hearing, and the way in which these points arose, the true reasons for the Industrial Tribunal's decision are quite apparent and adequate for the conclusion to which they came. As I have said, the only point taken in the Notice of Appeal goes not to the element of whether the evidence was relevant and prohibitive, nor to whether it was likely to have an important influence on the result of the case, or as the Tribunal puts it in paragraph 9 might have been significant in considering the credibility of the parties; the criticism goes to the requirement as stated by the Tribunal in paragraph 9, that it was:

"Not available at the date of the hearing and could not have been obtained by the Applicant with reasonable diligence".

As to the matter dealt with in paragraph 4 it is, as we understand it, not in dispute that the evidence on oath by Mr Brian Reilly, that the Applicant had failed to achieve any sales whatsoever in January, February and March 1992, emerged for the first time in cross-examination of Mr Brian Reilly; it had not been foreshadowed, as we understand it, in any pleading, particulars or documents served on the Applicant before the hearing, and we have no doubt whatsoever that the Industrial Tribunal had that in mind when considering whether that evidence, or rather the evidence contradicting that, could have been obtained by the Applicant with reasonable diligence, and that that was part of the reason for coming to their conclusion.

So far as the other point in paragraphs 5 and 6 is concerned, there had been Further and Better Particulars supplied, which showed that one of the matters that the employers relied upon was a meeting between Mr Brian Reilly and Mr Dennis, the Applicant, on the date in question, but not the crucial question of time to which Mrs Middleton's letter goes, and we equally have no doubt that that was well in the Tribunal's mind and was part of their reasons as so far as that episode and that piece of evidence was concerned.

We therefore come back to the question, in these circumstances, where the reasons are not fully articulated on the face of the document but are in truth apparent on undisputed facts, are we obliged to remit the matter to the Tribunal on the only basis which we would contemplate doing, that is to amplify their reasons, and in reaching a decision on that we find it helpful to go back to the case on which Mr Korn relies of Independent Research Services Limited v Catterall because that also, as I have said, was a case concerned with an interlocutory decision - it was in fact an application to adduce in evidence a letter headed "Without Prejudice" and which was therefore prima facie privileged from use in evidence. The Chairman in giving the reasons of the Tribunal for rejecting that application had said:

"Suffice it to say that the Tribunal does not consider that that ground of exclusion [advanced by the Applicant, that is to say, exclusion from the rule of privilege] applies in the present case. Having read the correspondence in question, the Tribunal sees no reason to exclude it from the protection normally afforded to without prejudice correspondence".

It was after that that the Employment Appeal Tribunal in the judgment of Knox J. made the statement of principle on which Mr Korn relies, and which we accept, that reasons should be given in an interlocutory decision as well as in a final decision. But, when one reads on, one finds that the event of that appeal to the Employment Appeal Tribunal was not that the appeal was allowed or that the matter was remitted, but that the Employment Appeal Tribunal itself came to the conclusion that the reasons, first, why the evidence was excluded and, secondly, why it should be excluded were apparent and could be articulated by the Employment Appeal Tribunal itself. The appeal was dismissed. That is not, of course, a case (no case ever is) totally on all fours with the present case, and we appreciate that in particular the decision there was more concerned than this case perhaps with law and less with facts, but it could not be a pure question of law, because facts were involved there, as they necessarily must be, in considering whether a particular ground of exclusion from the privilege rule was established. We have come to the conclusion that the right course for us to adopt here is to come essentially to the same conclusion as the Employment Appeal Tribunal did in the Catterall case, that is to say, that it is indeed right that Industrial Tribunals should give reasons for their conclusions on interlocutory points, but that although this Tribunal did fail fully to articulate their reasons it is apparent, combining what they do say and find as to the facts with what are undisputed matters about the course of the proceedings at the original hearing (which, of course, would normally be a matter that can be dealt with by way of recollection and the Chairman's notes and not have to be the subject of fresh evidence), it is quite apparent from those matters that what their reasons were and that they were good reasons and on that basis we dismiss this appeal.