United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 385_94_1110

Appeal No. EAT/385/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11th October 1995

THE HONOURABLE MR JUSTICE MORISON

MR P DAWSON OBE

MISS C HOLROYD

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K WARD          APPELLANT

BRITISH GAS PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

THE APPELLANT IN PERSON


 


MR JUSTICE MORISON: Mr Ward was employed by British Gas Plc, from 22nd August 1966 to 23rd June 1993, when his employment came to an end, as a result of a dismissal.

Mr Ward made a complaint of unfair dismissal which is dated 12th August 1993, and it was presented an Industrial Tribunal the following day.

It appears, and this is the only necessary background fact for the purposes of our decision, that Mr Ward has had a continuing and serious bad back problem arising from an unfortunate incident which took place in 1968. It was his contention in his IT1 that the dismissal of him was unfair because the employers showed a complete lack of sympathy or understanding of his proven long-term medical condition.

The employers, British Gas Plc, put in their response to the complaint of unfair dismissal, and admitted that they had dismissed him, but said that he had been dismissed not because of his back condition but for some other reason.

There was plainly an issue between the parties, therefore, as to the reason for the dismissal and the circumstances in which it took place.

The matter came on for hearing before an Industrial Tribunal held at Bury St. Edmunds, at which Mr Ward was represented by a solicitor. He had with him a witness, a Mr Wheeler, and, of course, he was also there.

On that occasion, British Gas Plc appeared through Counsel, and had a number of supporting witnesses who were potentially available to give evidence, seven of them in all. In addition there was a bundle of documents produced, together with some written statements.

What happened was that at some stage during that day, possibly as a result of the encouragement of the Chairman by comments that he made, Mr Ward, together with his adviser, consented to the withdrawal of the application. Mr Ward has told us that the reason why he consented, was because the Chairman had made a comment to the effect that if the case went on he might find himself responsible for paying the whole of the costs. Under that pressure, therefore, he consented to the withdrawal of his application.

We were told by Mr Ward that what had prompted the Chairman to make that comment, was the production to the Industrial Tribunal of a letter from British Gas Plc to him in June 1993:

"I write to confirm that your appeal against dismissal due to be heard on 19th May 1993, was withdrawn at the request of the Regional Trade Union official."

We should say, that the fact that an employee withdraws, if that were the case, his internal appeal, should not normally give rise to a suggestion that he has behaved unfairly or unreasonably in making a complaint of unfair dismissal. But, however, that may be, it was Mr Ward's contention, when this letter was produced, that it was simply untrue. He says that he was asked whether or not he had any written material to show that it was untrue, and at that time he did not.

He had written to the GMB Union, the union concerned, on 19th January 1994, and had received a holding letter from the General Secretary of that Union, dated 2nd February 1994. On 16th February 1994, Mr Ward received a full response from the Regional Secretary which was copied to Mr Skidmore saying that:

"reports had been sought as to allegations made in your letter dated 19th January 1994, that your Regional Organiser Mr Skidmore withdrew an appeal against your dismissal by British Gas, without your consent."

The essence of that letter, is that the appeal was not withdrawn but was postponed with Mr Ward's agreement, pending his attendance at a medical examination.

It follows, therefore, that Mr Ward considered that he now had the documentary material to which the Chairman had referred in the course of the hearing on 3rd February 1994, and accordingly he made an application to the Industrial Tribunal for a review of the consent order which had been made.

A Tribunal has power to review its decision on a number of grounds, including (d) that:

"(d) new evidence has become available since the conclusion of the hearing to which the decision relates, ..."

In his decision to refuse a review, the Industrial Tribunal Chairman, indicated that in his view:

"The letter of 16 February 1994 does not constitute new evidence for the purposes of Rule 11(1)(d) ..."

But that sub-rule continues and operates as a proviso to the admission of a review in these words:

"... provided that its existence [that is the new evidence] could not have been reasonably known of or foreseen at the time of the hearing; ..."

The decision to refuse a review continues:

"The applicant could reasonably have known of the evidence of Mr Skidmore at the time of the hearing. ..."

Mr Ward has put in a Notice of Appeal against the decision of the Industrial Tribunal Chairman to refuse a review of the earlier decision, and the purpose of this hearing is to determine whether or not he has an arguable point of law on such an appeal.

We have come to the conclusion, having considered all the papers in this case, that the discretion of the Industrial Tribunal Chairman in this case not to hold a review, cannot be faulted. It is clear that from the date when Mr Ward would have received the letter of June 1993 (which one can assume to be in the early part of that month) until 19th January 1994, neither he nor his solicitors had made any attempt to contact Mr Skidmore about the statement that the internal appeal had been withdrawn with his consent. That is despite the fact that Mrs Ward and her husband had discussed whether this letter from British Gas Plc could possibly have been true.

This is not a case where a person has been appearing before an Industrial Tribunal without the benefit of legal advice. As we have indicated Mr Ward had a solicitor at the hearing on 3rd February 1994.

In those circumstances, it seems to us, that the Industrial Tribunal Chairman's decision not to hold a review cannot be faulted having regard to the terms of the regulations which govern their procedure.

Accordingly, we are all satisfied that there is no arguable point of law and therefore Mr Ward's appeal will have to be dismissed. That said, it is not for us to determine whether he may have remedies against anybody else, but in our view, the matter before the Industrial Tribunal cannot now be re-opened.