United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 345_93_2311

Appeal No. EAT/345/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 November 1995

Before

HIS HONOUR MR JUSTICE KEENE

MISS J W COLLERSON

MR J D DALY

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(1) MR A M GENTLE & OTHERS          APPELLANTS

(2) MR J G H RACKSTRAW

(3) MR S G ROBINSON

PERKINS GROUP LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR PETER OLDHAM

(Of Counsel)

MS JOANNE KAY

Messrs Freeth Cartwright Hunt Dickins

Solicitors

Willoughby House

20 Low Pavement

Nottingham

NG1 7EA

For the Respondents MR A R MANNING COX

(Of Counsel)

Messrs Wragge & Co

Solicitors

55 Colmore Row

Birmingham

B3 2AS


 


MR JUSTICE KEENE: We have before us an application to adjourn this appeal. It is made by the Appellants on the ground that an application for the Industrial Tribunal to review its decision is pending, and that the appeal should not proceed until the Industrial Tribunal has decided whether or not to review. This case arises from a claim by the three Appellants that they had been unfairly dismissed by the Respondent company. An Industrial Tribunal sitting at Bedford and Bury St Edmunds unanimously decided that they had been dismissed by reason of redundancy and that they had not been unfairly dismissed. That decision was entered on the Register on 4 March 1993.

The Appellants had worked for one of the divisions of the Respondent company, known as Perkins Technology. In the autumn of 1991, the Respondent decided that it was necessary to reduce its workforce by achieving redundancies. Some of these had to be achieved compulsorily. All three Appellants worked in the Planning section of Perkins Technology. At this time, that section consisted of just four people, namely the three Appellants and a Mr Brammall, the team leader. The Tribunal found that the Respondent company as part of the process of contracting its labour force carried out a reorganisation at Perkins Technology, which involved closing the planning section. Such work as had been done by it was re-distributed to others in the Perkins Technology division and to a new post created in project management. Mr Brammall was appointed to that new post. The three Appellants were dismissed on 8 November 1991 on the ground of redundancy. There had been some degree of personal conflict between the Appellants and Mr Brammall in the period leading up to the redundancy exercise and their dismissal.

At the hearing before the Industrial Tribunal a number of allegations were made. The Tribunal noted that it had to decide whether the reorganisation was a genuine one, or merely a means of getting rid of the Appellants relatively easily, under the guise of redundancy. Evidence was called by the Respondent, given by, amongst others, Mr Parker who was head of business development and a senior manager, responsible for this section of the company, and by Mr Brammall. The Tribunal accepted that the reorganisation was a genuine one. In the course of that hearing, various documents were submitted, including copies of annual appraisals of the Appellants dated July 1991, said to result from a routine appraisal carried out in the spring of that year. The Tribunal found that the Appellants had not seen these documents before their dismissal, but there is no suggestion in the decision that the Tribunal regarded those appraisals as being anything other than genuine.

The decision to dismiss the Appellants followed a specific point scoring exercise, carried out in the autumn of 1991, in about October and November of that year, to assess the Appellants and others. That was done specifically for the purposes of the redundancy process. The Appellants seemed to have been suspicious about the authenticity of the July 1991 documents. It was only after the hearing had been concluded that they started to obtain some apparent support for their suspicions. Sometime in March 1993 an employee of the Respondent company spoke to Mr Robinson (one of the Appellants) about a conversation which she said she had had with Mr Parker's secretary Sandie Lawrence. That conversation was said to suggest that Sandie Lawrence had typed some documents between the time of the Appellants' dismissal and the Industrial Tribunal hearing, but which documents were back-dated. The documents were not identified at that stage according to a statement by Mr Robinson, which we have de bene esse allowed to be put before us today for the purpose of this application to adjourn.

We are told that Mr Robinson sought the co-operation of Sandie Lawrence soon after the conversation with the other employee. He sought that co-operation in or about March to April 1993, but co-operation was not forthcoming. Eventually he reported the matter to the police; first to the Bedfordshire Constabulary and in February 1994 to the Cambridgeshire Constabulary. We have before us a statement signed by Inspector Bullock of the Cambridgeshire Constabulary, which refers to meetings which he had with the employee to whom Mr Robinson had originally spoken, Jill Peachey, and also with Sandie Lawrence herself. The potentially important conversation is the one with Sandie Lawrence. Inspector Bullock who has been present today, although he has not been called to give evidence, records that he saw Sandie Lawrence on 4 March 1995. His statement says:

"... I then showed Miss Lawrence copies of three 1991 appraisals relating to Robinson, Gentle and Rackstraw. She confirmed that they had definitely been typed up by herself and was certain of that fact. She could not remember when she typed them up, it may have been shortly before the Industrial Tribunal, but she was 99 per cent certain that they were typed up after the three men left the company which I understand was the 8th November 1991."...

There are then certain passages which we need not read. There is then a further part of this statement by Inspector Bullock which reads as follows:

"... I asked her if she had just been tidying up documents for the Tribunal and perhaps typing up documents for the file which were illegible or was it a case of typing up documents which would be produced at the Tribunal which were to give the impression they had been created at an earlier date. She replied that it was the latter. She said that she was unhappy about typing them up and recalls mentioning the matter to Jill Peachey."...

The statement by Inspector Bullock also records Sandie Lawrence saying:

"... She said that she would be prepared to make a statement about the matter but she would like to speak to her employers first."...

That would seem to be a reference to a potential witness statement made for the purpose of possible criminal proceedings. The matter was in fact passed to the Bedfordshire Constabulary. They have been dealing with this matter since then. We are told that their investigations are not yet complete. No-one knows whether that constabulary is in possession of a formal witness statement made by Sandie Lawrence. It seems that Mr Robinson asked Sandie Lawrence to attend this hearing today, but she apparently was told by someone within the E.A.T. offices that she need not do so; that being a comment made for understandable reasons, and in the event she has not attended.

The statement of Inspector Bullock is dated 7 November 1995. On 14 November 1995, the Appellants' solicitors faxed an application to the Industrial Tribunal seeking a review of its decision, on the basis of fresh evidence. On that same day, they faxed an application to this Tribunal seeking an adjournment of today's hearing. That application was refused by the Registrar and is the one which has been renewed before us today.

It is an understatement to say that these proceedings have been very long drawn out. They have gone through already a regrettable passage of applications for review, appeals to this Tribunal and various other processes, before arriving at this hearing today. Nonetheless, Mr Oldham on behalf of the Appellants says that his clients meet the tests set out for fresh evidence to be admitted by an Industrial Tribunal, and thereby for a review of a Tribunal decision, as spelt out in Wileman v Minilec Engineering Ltd [1988] IRLR 144. Those tests essentially are first, that the fresh evidence should not have been reasonably available or foreseen at the time of the original hearing and secondly, that the evidence is relevant and likely to have an important influence on the outcome of the case. Mr Oldham submits that this evidence referred to in the statement of Inspector Bullock is both relevant and important. He bases that upon two grounds. First, he says that part of the redundancy procedure at the time included certain performance criteria guidelines. Those guidelines contained the statement "take into account any recent performance appraisals as a guide". Secondly, and to our mind perhaps of greater significance, he relies upon the fact that the statement by Sandie Lawrence, referred to by Inspector Bullock, raises the whole question of the credibility of certain of the Respondents' witnesses. He says that if it were to be found that those July 1991 appraisal documents were fabricated, then that suggests that the company had at that time been seeking to cover its tracks.

For the Respondent, Mr Lock first of all contends that irrespective of whether the Tribunal below were to grant a review, there need be no adjournment of this appeal. He says that this appeal which raises certain issues of law on the Notice of Appeal as it stands, can properly be determined separately from the pending application before the Industrial Tribunal. We say at once that we cannot accept that submission. It seems to us that the application to the Industrial Tribunal to admit fresh evidence and for a review may go to the credibility of certain important witnesses before the Tribunal at the original hearing, in particular, Mr Parker and Mr Brammall, which has the potential to affect the whole factual basis of the case. We cannot pre-judge that. We can see little point in deciding the issues raised on the Notice of Appeal as it currently stands, when it is possible that the Industrial Tribunal may as a result of the pending application before them arrive at different factual conclusions.

Mr Lock then turns to the test in the Wileman case and says that those are not satisfied. It is, I think, at this point important that we should observe that it is not for this Appellant Tribunal today to decide whether or not the Industrial Tribunal will or should admit this new evidence and will or should review its decision. That is a matter for the Industrial Tribunal to determine itself. Mr Lock accepted in the course of argument that this Tribunal cannot second-guess the Industrial Tribunal's decision. We have to decide on the basis of whether a reasonable Industrial Tribunal could regard the Wileman test as being satisfied, or perhaps more appropriately whether it is impossible for a reasonable Tribunal to arrive at a conclusion that that fresh evidence should be omitted and its decision reviewed. It may be that we would take the view that if we were sitting as an Industrial Tribunal, we would not regard the Wileman test as met. That is not for us to decide. What it is for us to decide is whether it is realistically out of the question for the Industrial Tribunal to regard those tests as having been satisfied.

With that in mind, we turn to the particular points made by Mr Lock on the substance of the Wileman tests. He submits that the Appellants have not shown reasonable diligence, and that on the first limb of Wileman these matters could have been raised at an earlier stage. He points out that Mr Robinson only sought to discover this evidence in March 1993, despite his earlier suspicions, and that even though there was subsequently a review hearing on 31 January and 1st February 1994, this matter was not raised there. He emphasises that at that review hearing in January and February 1994, the Appellants, and in particular Mr Robinson (who appears to be taking the lead in these matters), could have relied upon the evidence he had himself obtained about his conversation with Jill Peachey, even though that of course would be hearsay.

It does not seem to us that the Appellants are bound to fail before the Industrial Tribunal on that limb of the Wileman test. The allegations that are being made, in effect, in the course of the statement that has been put before us today by Inspector Bullock are extremely serious allegations: essentially alleging that there has been some deliberate fabrication of evidence on the part of officers and employees of the Respondent company. Those allegations are not ones that should be advanced lightly before an Industrial Tribunal. They need good evidence to back them up. We can well understand that the Appellants did not see fit to try to raise them before the Industrial Tribunal at its original hearing. So far as the review hearing is concerned, it is true that at that stage the Appellants did have available to them, at any rate, an oral statement at that time by Jill Peachey about what she had been told by Sandie Lawrence. We do not wish to express a view specifically on whether or not that could have been put before the Tribunal in January and February 1994 at the review hearing. It suffices to say that in our judgement the Industrial Tribunal could, if it so wishes, take the view that the Appellants had good reason for not seeking to act at that stage on the basis of the evidence so far available and that they were still acting with reasonable diligence at that time.

On the other limb of the Wileman tests, it is submitted by Mr Lock for the Respondent that the decision to make the Appellants redundant was made primarily on the basis of the specific scorings carried out, and indeed carried out by people other than Mr Parker and Mr Brammall. Therefore he contends that these appraisals of July 1991 were not of significance in the decision which was made by the company. We can see some force in that, but it leaves untackled the second of the points advanced on behalf of the Appellants in relation to this matter, that is to say the potential effect upon the credibility of important witnesses heard by the Industrial Tribunal. If, and we emphasise the word "if", the Industrial Tribunal were to conclude that Mr Parker and/or Mr Brammall had been involved in the fabrication of these documents, it could lead to the Tribunal taking a very different view of the case. Mr Parker was an important witness. He, according to the Tribunal's decision, played an important part in the dismissal of the Appellants and in the reorganisation of the company [see paragraph 51 of the decision]. If the documents were fabricated, that would also reflect on Mr Brammall's credibility, because he signed these assessment forms.

In those circumstances, if the Tribunal were to conclude that Mr Parker and/or Mr Brammall had been involved in such a deliberate fabrication, it could lead to it taking a different view on crucial matters like why the reorganisation was done and whether that reorganisation was genuine or a device to get rid of the Appellants. As we have pointed out, this was one of the issues which the Tribunal felt was of importance to its own eventual decision. We make it clear that we are not seeking to pre-judge such arguments. That is not our function today. We merely say, as we have concluded, that it is open to the Industrial Tribunal to arrive at such conclusions if it thinks fit. The application to that Tribunal to review cannot, in our judgement, be categorised as a foregone conclusion against the Appellants. In those circumstances it appears to us that the only sensible course is to adjourn these proceedings today. We have, in arriving at that conclusion, taken into account the potential prejudice to both parties which may arise from such an adjournment. We note that it is the Appellants who were also the claimants seeking compensation below, who are seeking the adjournment today. We note that, because it is relevant sometimes whether or not a claimant is being kept out of a potential sum of money by way of compensation. That factor does not arise today. We can see that there may be some prejudice to the Respondent in terms of the costs of today; that is something which if need be, and if justified, can be dealt with as a separate matter. We have arrived at our conclusion with some regret, because of the substantial delays which have already occurred in this case. The time and money which has been expended already can only be a matter of regret to both parties. Nonetheless the decision which we make is that this appeal must be adjourned, pending the decision of the Industrial Tribunal on the application for a review.