United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 619_93_2109

Appeal No. EAT/619/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 September 1995

Before

THE HONOURABLE MR JUSTICE TUCKER

MR D J JENKINS MBE

MR T C THOMAS CBE

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MRS H GRIFFIN          APPELLANT

(1) MR C SIMPSON

(2) DEPARTMENT OF EMPLOYMENT          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR P MEAD

(of Counsel)

Messrs Pattinson & Brewer

11 Broad Quay

The Centre

Bristol

BS1 4DH

For the Respondents MR I MACCABE

(of Counsel)

The Treasury Solicitor

Queen Anne's Chambers

28 Broadway

London

SW1H 9JS


 


MR JUSTICE TUCKER This appeal raises a short but important point. It is set out in the only ground of the amended Notice of Appeal which we now have to consider.

The Tribunal refused to permit the Applicant/Appellant to give evidence in rebuttal of evidence given by Mr S. Latus at the hearing on the review of the decision of the Industrial Tribunal on 12 October 1993.

This is the latest chapter in a long-running saga. The case came before Mr Justice Morison for directions on 17 May 1995. The learned Judge gave a masterly summary of the history of the case which we gratefully adopt as follows.

"Until she left her employment on 30 March 1994, in circumstances which she says gives rise to a claim for constructive dismissal under the 1978 Act, and to complaints under the Race Relations Act 1976, Mrs Griffin, an Asian, was employed by the Department of Employment. Her employment started at the end of 1973. She was appointed an Executive Officer in February 1982 and by 1991 was working in the Department's Benefit Office at Cheltenham. In September of that year, her immediate superior was due to take annual leave. Mrs Griffin had expected to cover for her during that time, but instead, two other persons were asked to undertake that task, one covering for one week and the other for the second week of absence. Mrs Griffin took exception to the way in which she was dealt with and complained to her Senior Manager, Mr Simpson, about it.

Her grievance was not resolved. On 26 November 1991 she presented a complaint to an Industrial Tribunal alleging unlawful discrimination contrary to Section 1 of the 1976 Act. Subsequently she requested the Industrial Tribunal to allow her to add claims in respect of events which had occurred both before and after she had presented her complaint. In relation to the later matter, she alleged that the Department were guilty of victimisation, contrary to Section 4 of the 1976 Act. Her complaint was listed for hearing and came before the Industrial Tribunal held at Bristol on 7 May 1992 [but here we paraphrase - it had to be adjourned].... ."

The matter cam on for hearing, and lasted for six days, over the period from 14 December 1992 to 27 January 1993. The unanimous decision of the Industrial Tribunal, which was entered in the Register on 5 February 1993, was that the complaints of unlawful discriminatory treatment and victimisation, should be dismissed. In relation to victimisation, the relevant officer of whose treatment Mrs Griffin complained, [that is to say Mr Latus] said he was unaware of the complaint which was then pending before the Industrial Tribunal. On 18 February 1993, Mrs Griffin asked the Industrial Tribunal for a review of their decision. On 25 March 1993 the E.A.T. received from her a Notice of Appeal, alleging that the Industrial Tribunal had not appeared to apply the criteria specified in The Act. Between that date and 5 August 1993, there was sporadic correspondence between the E.A.T. Office and Mrs Griffin about her Notice of Appeal and whether it disclosed any arguable point of law.

The upshot was that, on 5 August the E.A.T. informed Mrs Griffin that a Preliminary Hearing of her appeal had been ordered. Mrs Griffin's application for a review came before the Industrial Tribunal on 27 August 1993 and by a written decision entered in the Register on 1 September 1993 the Industrial Tribunal ordered a review, limited to Mrs Griffin's complaint of victimisation against the Department. In other words, there was to be no review of the dismissal of her complaint of discrimination contrary to Section 1 of the 1976 Act, nor of her complaint against Mr Simpson.

The grounds upon which the decision was based, related to the possibility that there was new evidence to show that the relevant officer did know of her pending application to the Industrial Tribunal. On 16 September, Mrs Griffin wrote to the E.A.T. complaining of the Industrial Tribunal's decision not to allow a review of the whole decision, but no Notice of Appeal was received. The matter came before the Industrial Tribunal on 12 October 1993, at which evidence was given by the relevant officer, [Mr Latus] who had put to him the new material, which included evidence said to show that Mrs Griffin's performance in her job was better than she was being given credit for by her superiors, when assessing her case for promotion. On 19 October 1993 the written decision of the Industrial Tribunal confirming their original decision was entered in the Register. Mrs Griffin complained about this decision and wrote to the E.A.T. about it. Despite being told that a new Notice of Appeal was required, one was not submitted. After some correspondence on 13 January 1994, the E.A.T. wrote to her saying that her appeal would be listed for hearing as soon as possible. She was entitled to infer, I think, that that meant that all her various appeals would be considered at the Preliminary Hearing, regardless of the existence or otherwise of a formal Notice of Appeal.

The matter came before the E.A.T. on 9 March 1994, for consideration as to whether she had shown any arguable point of law in relation to any of her complaints about the Industrial Tribunal decisions. After consideration of the matter, the E.A.T. held that apart from one issue, none of the matters raised were arguable points of law and should be dismissed. The one point upon which the E.A.T. thought there was an arguable point related to the review. Mrs Griffin complained that she was not permitted by the Industrial Tribunal to give evidence herself and she says that this was unfair and wrong."

When the matter was first heard by the Tribunal the Appellant appeared in person. The Respondents have, almost throughout been represented by Counsel, Mr Maccabe.

The Tribunal gave full reasons for their decision. It seems to us that the only relevant parts of that decision are those contained in paragraphs 24 and 25, where the Tribunal say this:

"24 Mr Latus became the applicant's manager on 4 November 1991. On 5 February 1992 he marked the applicant "Not Fitted". This was endorsed by Mr Simpson on 27 March who also stated that he would not accept her in a higher grade. In doing so they went against the draft assessment left behind by Mr Mills in August 1991 that she was `likely to be fitted in two years'. It is not surprising that the applicant believes that this assessment was because the applicant had brought proceedings against Mr Simpson claiming racial discrimination.

25. Mr Latus contends that he did not know about the applicant's claim at the time, even though there was a reference to it (388) on her personal file which he had in his possession. Had this not been the Civil Services we would have rejected this contention, but we are satisfied that the Department treated the tribunal application as a personnel matter to be regarded as semi-confidential and not to be discussed with the manager. If Mr Latus did not know about it then he could not have taken it into account. In any event we are satisfied that he reached the promotability assessment on objective grounds."

As has been said on 27 August 1993, the Tribunal ordered a review limited to the Appellant's complaint of victimisation. They outlined the scope of the review which they were prepared to conduct. They said this:

"(5) .... The applicant now seeks to adduce two documents which were not before us on previous occasions. The first is self-certified sick leave notification dated 6 December 1991. At the hearing the applicant put to Mr Latus that she had put in a self-certified sick leave notification. He said he had no recollection of this certificate. She did not produce the copy certificate to him at the time. It was in her possession but presumably she had not brought it to the Tribunal. We now have a copy of that notification and it says under `nature of illness' - `sick again as a result of what in my perception appear to be incidents of victimisation and harassment by SEO and A/HEO'. `SEO' means Mr Simpson and `A/HEO' means Miss Scriven. The allegation is that he saw her about this document and encouraged her to alter it. She would suggest that it follows that if that certificate was known to him he must have known that some kind of proceedings were going on. This would be contrary to his evidence that he knew nothing about the application until March or April 1992."

And later they say:

"6 .... We would be interested to hear Mr Latus' explanation of that document."

And then they say:

"7 The other new documentary evidence is the "Client Advice Monitoring Returns' for the relevant period. .... "

And later they say:

" .... The evidence of Mr Latus was that this was one of the causes of concern at the time he was appointed and that he looked into it and it was one of the important matters in deciding that she was not fitted. .... "

And the Tribunal end in their decision as to whether or not to grant a review by saying this:

"10. We have come to a decision therefore that we should review this decision to this extent, namely that we would admit these two documents and we should give Mr Latus the opportunity to explain what he has to say about those two documents. As we understand it that could not be done today. It will be open to the respondents when Mr Latus is recalled to produce any further documents which are relevant to this particular issue. If either side wish to call further witnesses they will have to convince us that it would be appropriate to give leave for such further evidence."

It is to be observed that there was no specific reference to the possibility of the Appellant herself giving evidence at the review.

When the matter came up for review on 12 October 1993, the Appellant was represented by a Solicitor, Miss Tailby. We have notes of the hearing. Those notes together with the full reasons given by the Tribunal show what occurred on that occasion. The two documents were produced. Then Mr Latus was asked to give evidence as to his explanation of them. He was examined-in-chief and was then cross-examined by the Appellant's Solicitor. Nothing emerged which required the Respondents to re-examine.

The two documents, or rather sets of documents, seem to us to fall into different categories. The first is a self-certified sick leave notification. This did not go to prove the merits of the Appellant's case but to the credit of the witness. He denied having seen it; that being so the Appellant was bound by his answer and it would not be open to her to give evidence about it. Therefore she can have no complaint about not being permitted to give evidence in relation to that.

The second category of documents comprises documents called Client Advice Monitoring Returns or Claims Adviser Performance Data Returns. These documents did go to the merits of the Appellant's case since Mr Latus had said that he marked the Appellant "Not Fitted" because she was not achieving performance targets, and the statistics recorded in these forms are important matters in making his decision.

One of the reasons the Appellant obtained grant of a review was that she claimed that these returns would prove that performance of the Appellant's Claimant Adviser Section and hence of the Appellant herself was at a high level.

On the face of it, the documents might appear to bear that interpretation and to show that the performance of the section was above target. However, it appeared to the Tribunal, rightly as we believe, that when properly construed the documents revealed a very different picture and showed that the actual performance was below target level. That is what the Tribunal found was apparent from Mr Latus's evidence and from the documents themselves. They accordingly concluded that in those circumstances the documents "do not take the rug away from the Respondents' case in the way it first appeared".

The problem that gives rise to this appeal is described in paragraphs 9 to 11 of the Respondent's amended Notice of Answer which reads thus:

"9) At the conclusion of his evidence and pursuant to the reservation in the 27th August order, the representative of the Applicant reapplied for leave to call the Applicant to give evidence. The Tribunal, having heard the questions put in cross-examination and being properly mindful of the time and expense of the litigation thus far engaged and in the need for finality, asked what material oral evidence the Applicant could give on the two issues that would rebut Mr Latus's evidence. No material oral evidence was identified by the Applicant's representative to rebut that evidence.

10) When the views of the Respondents were then canvassed by the Tribunal as to whether the Applicant should be allowed to give oral evidence, the Respondents' expressed view through Counsel was that the Applicant should be allowed to give evidence although it was upon questioning conceded to the Tribunal that it did not appear from either the cross-examination or the submissions of the Applicant's representative that any material evidence was in fact sought to be given in rebuttal. The unexpressed but considered reason why such a view was expressed was to forestall or minimise the prospect of any further attempted spurious complaints and or further appeals arising out of the said refusal.

11) The Tribunal, having heard the explanation to its proper satisfaction and not being informed of any material oral evidence which it was averred by the Applicant's representative would make any difference to the explanations it had been given by Mr Latus, were entitled and right to decide not to prolong this already protracted case with further otiose statements from the Applicant."

Those are among the Respondents' grounds of opposition to this appeal.

When the appeal came before us, the Appellant had the advantage of being represented by Counsel who made submissions in accordance with his skeleton argument, and who referred us to two decisions of the Employment Appeal Tribunal. First, that in Aberdeen Steak Houses Group plc v Ibrahim [1988] IRLR 420 and the second, that of Rosedale Mouldings Ltd v Sibley [1980] ICR 816.

Counsel's submission was that the review was incomplete; that the Appellant had no opportunity of telling the Tribunal why the new documents were important and that the Tribunal came to its conclusion without hearing what she might have said about them. That led us to ask "what it was that the Appellant could have said"? We invited Counsel to show us any proof of evidence or statement from the Appellant bearing on the matter. To our surprise he told us that there was none. He submitted that we should not speculate about what the Appellant might have said to the Tribunal or about what effect it might have had upon them.

We bear those submissions in mind, but we are bound to say that we find it difficult to see what further contribution the Appellant could have made. She had attended the original Tribunal hearing over a period of six days when she had, as we assume, every opportunity of presenting her case. She had, in our view, been fortunate to obtain a review of the Tribunal's decision, having regard to the fact that the documents in question were, or ought to have been, available to her at the hearing. Her advocate had cross-examined the Respondents' witnesses upon those documents with the results to which we have referred.

We think it is perhaps a pity that the Appellant was not permitted to give evidence as the Respondents' Counsel suggested at the time, and for the reasons set out in the Respondents' answer. We think that a good deal of trouble might thereby have been avoided.

At the same time, we sympathise with the Tribunals in their attempts to restrict proceedings, especially review proceedings, to material matters and we agree with the Tribunal's statement that a review does not open up the doors to further evidence in general terms and in this instance, to hear further evidence from the Appellant, Mrs Griffin and Mr Simpson would be to allow evidence, which was available at the hearing to be called.

Counsel for the Respondents accepts, as in our view is correct, that a Chairman of a Tribunal has no discretion to refuse to allow the giving of evidence which is relevant and probative. That is what is required by the rules of natural justice and accords with the Industrial Tribunals (Rules of Procedure) Regulations 1985. But in our view, there was no such evidence here and in our opinion the Chairman was, in the particular circumstances of this case, right not to allow further evidence to be adduced.

This case is, in our view, distinguishable from cases such as the Aberdeen Steak House.

Accordingly, this appeal is dismissed.