United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 780_94_0703

Appeal No. EAT/780/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7 March 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

LORD GLADWIN OF CLEE CBE JP

MRS M E SUNDERLAND JP

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A CARS EXPRESS DESPATCH LTD          APPELLANTS

MR J LEE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR P KELLY

(Transport Manager)

A Cars (Express

Despatch) Ltd

8 Oxford Road

Luton

Bedfordshire

For the Respondent MRS H WILLIAMS

(of Counsel)

Luton Law Centre

2a Reginald Street

Luton LU2 7QZ


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by A Cars Express Despatch Ltd against the decision of the Industrial Tribunal held at Bedford on 23 June 1994. The Tribunal unanimously decided that the applicant and former employee of A Cars Express Despatch Ltd, Mr John Lee, was entitled to compensation of £7,209.50. The Tribunal's decision was appealed by the company after an unsuccessful attempt was made to obtain a review. A letter was sent to the Tribunal applying for a review at the end of June. The Chairman refused the review in a decision notified on 14 July 1994, stating that there were no reasonable prospects of the Company being successful if a review was heard.

In the Notice of Appeal served on 16 August 1994 the company appealed, both the decision on remedy and the refusal of the review.

At the hearing of the Appeal today, the company has been represented by Mr Kelly, the company's transport manager. Miss Williams has appeared for Mr Lee. It is relevant to mention the representation because of the way in which the matter was dealt with below and certain points which have emerged during the hearing. The background to the proceedings is this Mr Lee was employed by the company as a courier. He was employed from the 6 February 1989 until he was dismissed on 18 November 1992. The circumstances in which he was dismissed led him to present a complaint to the Industrial Tribunal on 30 January 1993. He claimed that he was unfairly dismissed, that he had not received no warnings concerning his performance or conduct. The dismissal on 18 November 1992 was for allegedly striking another employee in the face, but he was given no opportunity to state his side of the case. He had received no response to a letter he wrote on 29 December 1992 seeking a detailed explanation of his dismissal.

The claim was contested by the company in a Notice of Appearance received on 10 March 1993. The basis of the defence was that Mr Lee had been dismissed instantly and summarily for gross misconduct. The conduct alleged was an unprovoked attack on verbally and physically on superior occasioning bodily harm.

The question of Unfair Dismissal came before the Industrial Tribunal at a hearing on 27 January 1994. At that hearing Mr Fraser from the Luton Law Centre represented Mr Lee. The company was represented by Mr Bowness, the administration and traffic manager of the company. The Tribunal decided that Mr Lee was unfairly dismissed and adjourned the Question of Remedy to be discussed with liberty to re-apply. The Tribunal notified summary reasons to the parties on 28 February 1994. It is relevant to point out that, for the purposes of an appeal this Tribunal, an Appellant must serve not only a Notice of Appeal but also a copy of the extended written reasons for the decisions of the Tribunal. That is provided in Rule 3(1)(c) of the 1993 Employment Appeal Tribunal Rules. No extended reasons for the decision on liability have been produced. There is in fact no appeal against the decision on liability. The absence of Extended Reasons does, however, make it more difficult in some respects to understand the later course of the case when the matter returned for remedy.

The matter came back for remedy on 23 June 1994. The hearing was before the Tribunal constituted in same way as heard the case on liability in January. Mr Fraser from the Luton Law Centre again represented Mr Lee, but there was a change in the representation of the company. Mr Kelly came in for the first time. He informed us that he only became involved in this matter a few days before the Hearing on Remedy. The Tribunal gave extended reasons for the decision to award Mr Lee compensation on £7,209.50. The Tribunal went into the earnings position of Mr Lee and made some findings on the facts relevant to this Appeal. The Tribunal said in paragraph 3 of the Extended Reasons notified on 14th July 1994:

"3 ... At the beginning of August 1993 the applicant became unemployed following the liquidation of his new employers. He was offered at new position by the respondents by letter. This was in a self-employed capacity at a substantially lower rate of basic pay. The tribunal have considered this offer and they are satisfied that bearing in mind that fact it was self-employment and the lower rates of remuneration and the circumstances of Mr Lee's dismissal, he was reasonable in refusing that offer of employment."

"4 We have heard evidence as to his attempts to obtain other employment in the period from the 1 August 1993 until the 14 February 1994 and we are satisfied that he made reasonable attempts to find alternative work and there was nothing else he could have done to mitigate his loss during this period. His losses, however, ceased on the 14 February 1994 when he voluntarily ceased to be available for employment by taking a full time course of education."

Those finding of facts were taken into account by the Tribunal in arriving at the Total Compensation of £7,209.50.

The company was dissatisfied with both the decision on Liability and the Decision on Remedy. The company had made an application for a review on the decision on Liability by a letter dated 5 April 1994. That was in a letter written on behalf of the company by Mr F R Sullivan, a director of the company. He said this: "There are witnesses to the incident that led to Mr Lee's dismissal but they were not given the opportunity to give evidence in court. Also it was not drawn to the attention of the court that Mr Lee had already attacked another supervisor some time earlier and had been disciplined and warned on his future conduct. We had also received complaints on Mr Lee's conduct from our customers." The Tribunal rejected that application for review, on the grounds that there was no reasonable prospect of success of the review. The decision was notified to the parties on 2 June 1994.

Following the Decision on Remedy Mr Kelly wrote a letter to the Tribunal at the end of June formally applying for a review of the Decision on Remedy. He sent a later letter received in the Industrial Tribunal on 11 July 1994. He said this in the letter: "On 23rd June 1994 you chaired the remedy hearing on the above case and awarded a certain John Lee substantial sum based on claims that Lee submitted over his employment situation since we dismissed him from our employ for hitting a supervisor."

"Lee claimed on oath that he had lost a large sum of money after we dismissed him because he was unable to obtain work. We challenged him in your Court of this point as we were well aware that within 24 hours of leaving our employ he obtained employment identical to that which he held with ourselves with a company named HMC and that he would have held this new employment with HMC had his conduct not let yet again to a dismissal."

"Your records of this hearing will clearly show that whilst under oath he was challenged on this matter and he replied that he was never fired but made redundant. Your records will also show that the undersigned reminded John Lee that he was giving evidence under oath and again suggested to him that HMC fired him. Your records will show once again that he denied this even though he had just been reminded that he was under oath to tell the truth."

"We enclose herewith a letter from HMC which clearly shows that John Lee committed outright perjury in your Court and that the perjury had a direct bearing on the sum the Court awarded to Lee. Perjury is a criminal offence and information has been laid before the Bedfordshire Police who will not doubt be in contact with you in due course."

"Meanwhile we request that you give urgent consideration to the situation and take action that will give this Company an opportunity to remove the financial burden your Court has placed upon us. As a footnote you will see from the records that the DSS have an interest in this case as there well may be grounds for a charge of fraud to be brought against Lee by them."

The statement from HMC referred to in that letter is written by the rentals manager and previous rentals manager for the Harpenden Motor Company, HMC. It is addressed but not dated. It is addressed TO WHOM IT MAY CONCERN. We were told by Mr Kelly that he received this statement from HMC several days after the hearing on 23 June 1994, But he made an application to the Tribunal at the Remedies hearing on 23 June for an adjournment of the hearing so that he could bring forward evidence from HMC. He also told us that it was only about a week before the hearing of 23 June 1994 that he had made enquiries from HMC as to Mr Lee's employment with them and the circumstances in which it terminated. The statement says: "Mr John Lee was employed by Harpenden Motor Company as a courier driver and a general driver."

"His Employment started on 20th November and for the main part his work was good. However on 29th July 1993 he was dismissed from employment with Harpenden Motor Company, after this date Mr Lee did contact members of staff at Harpenden Motor Company to ask if they would tell his insurance company that he was made redundant."

"This they refused to do and the letters were sent to Mr Lee's insurance company stating that he was dismissed for misconduct."

As already stated Mr Kelly's application on behalf of the company for a review of the Remedies decision was refused on the same grounds as the refusal of a review in relation to the holding of Unfair Dismissal.

We have referred to those matters in detail since they form the basis of the detailed grounds on which the Appeal is brought to this Tribunal. As already mentioned, the Appeal is against the Decision on Remedy and the refusal of a Review. The main ground which Mr Kelly has put forward for the Appeal today is that there were errors on the part of the Tribunal, first in, refusing the adjournment requested at the hearing on 23 June; then, in making an award of the size that it did in place in favour of Mr Lee, who Mr Kelly argued, had misled the Tribunal at the Remedies Hearing by false evidence. And then subsequently refusing a Review at which the company, through Mr Kelly, would have had an opportunity to put forward the evidence from HMC.

We have the benefit of the comments of the Chairman about what happened on 23 June. I should refer briefly to them. The Chairman sent his comments to the Tribunal. The only parts that our relevant for the purposes of the Appeal are paragraphs 6 and 7:

"6. On 23rd June a remedy hearing took place. Prior to the hearing there had been an application by the Respondents in a letter received at the Tribunal office on 14th June for a postponement which application was refused by me as the grounds given were inadequate."

"7. On 23rd June the Respondents were represented by a Mr Kelly, now Transport Manager of the Respondent company who had not been present at the substantive hearing. We were also told that a Mr Sullivan had intended to come to the Tribunal but had gone home ill. There was no medical evidence presented to the tribunal and we decided that the case must therefore proceed. Mr Lee gave evidence in relation to his financial losses and was cross examined by Mr Kelly on behalf of the Respondents. The applicant was questioned on the reasons for him leaving his employment with HMC Roadman Ltd. The Tribunal accepted his evidence that he had been made redundant."

The tribunal made the award of compensation.

We should mention for the sake of completeness that, in addition to the point which has made by Mr Kelly about the new evidence, he has sent to the Tribunal on 28 February 1995 a further letter which not only goes over the points mentioned in relation to the dismissal by HMC Roadman Ltd. He also says that, upon trying to discover why Mr Lee was dismissed, he has been able to discover a conviction of Mr Lee for failure to provide a specimen for a Breath Test. He encloses with his letter certificates of conviction relating to offences committed on 2 May 1993. The conviction were on 19 October 1993.

In our view, the Appeal does not raise any question of law, and therefore this Tribunal has no jurisdiction to allow the Appeal on the grounds advanced by Mr Kelly. We agree with the submissions by Miss Williams on behalf of Mr Lee. She submitted that there was no error of law in relation to the Appeal, either against the decision on Remedy or against the Refusal of a Review.

Before addressing the Points of Law which might be relevant, Miss Williams was at pains to point out that, as far as the company's grounds of appeal contained an imputation that Mr Lee had given false evidence at the hearing before the Tribunal, that allegation was completely denied. Mr Lee was dismissed by HMC Roadman Ltd and at both the hearing on Liability and on Remedies his evidence was preferred to that of the company.

First, on the Appeal about the refusal of the adjournment requested by Mr Kelly at the hearing on 23 June, Miss Williams rightly pointed out that the decision whether or not to grant an adjournment on request is a matter of discretion for the Tribunal. There can be no error of law in the exercise of the discretion and therefore no appeal, unless it is established that the Tribunal, in refusing an adjournment, have erred in principal by taking into account irrelevant matters or leaving out of account relevant matters, or if it can be shown (and this would rarely be the case) that the refusal of an adjournment was a decision which no reasonable Tribunal, properly appreciating the facts of law in the case, could have reached. There are no such grounds for attacking the Chairman, because of the Tribunal's refusal of an adjournment. The only complaint that is left, about the Remedies Hearing is that there was evidence which the Tribunal should have allowed the company to produce. That was the basis of the request for the Review hearing. As to a Review, Miss Williams rightly pointed out that that is also a matter for the Tribunal's discretion, though their discretion is limited by the grounds specified in Rule 11 of the Industrial Tribunals Constitution Rules of Procedure Regulations 1993. The only grounds that could be relevant to the Review that was requested here would be grounds (d) or (e). As to ground (d) a review maybe ordered if new evidence becomes 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 at the time of the hearing. We accept Miss Williams' submission that that ground could not possibly apply to the company's request for a Review. The company was aware of the existence of the potential evidence at the time of the Tribunal hearing. The application for the adjournment was made on that basis. We understand from Mr Kelly that he was not in a position to put before the Tribunal the statement obtained from the rentals manager at HMC. The company had had ample time in which to gather evidence that would be relevant to its defence of the case, both on liability and on remedy. The dismissal took place as long ago as 18 November 1992. Over a year passed before the hearing on Liability at Bedford on 27 January 1994. After time for discussions on Remedy had been allowed, a further six months passed before the Hearing on Remedy. There is really no basis on which the evidence which Mr Kelly has referred to could come within (d). We find that there was no error in the exercise of the Discretion on the part of the Tribunal Chairman in refusing a Review on ground (d). As to the other possible ground (e) that "the interests of justice require such a review" that power is only exercised in exceptional circumstances. The circumstances of this case did not justify it, for the same reasons as they did not justify the Review under ground (d).

It cannot be emphasised too strongly that when an employer is at the receiving end of a claim for Unfair Dismissal and he wishes to contest it, it is for him and his advisors, if he engages any, to have all the evidence on which they are going to rely, ready for the hearing The only circumstances in which evidence can be adduced after the hearing, either on a Review or on an Appeal to this Tribunal, is if that evidence could not reasonably be known of, or foreseen at the time of the Hearing or, as far as this Tribunal concerned, if it is evidence which falls within the category of a case covered by Ladd - v - Marshall.

The first requirement, in that case, is that the party seeking to introduce the new evidence must show that that evidence could not have been obtained with reasonable diligence for use at the Tribunal. Nothing that Mr Kelly has said in the letters which he has written to the Tribunal or in his submissions today persuades us that the evidence from HMC either falls within rule 11(1)(d) of the Industrial Tribunal Regulations or falls within the first requirement of Ladd - v - Marshall regarding the use of new evidence on appeal to this Tribunal.

In those circumstances we have reached the conclusion that there is no ground of law on which an appeal can brought, either against the decision on remedy and a refusal of an adjournment of that hearing or on an Appeal from the refusal of the Chairman to grant a Review. In those circumstances the Appeal is dismissed.