United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant
For the Respondents


 


JUDGE HICKS: On 29 September, at a preliminary hearing, we gave leave to Mr Brierley to amend his Notice of Appeal and then heard and dismissed his appeal, as so amended, for the reasons given in our judgment of that date. He now applies under rule 33 of the Employment Appeal Tribunal Rules 1993 for a review of our order.

1. Mr Brierley's application is made under heads (a) and (c) of rule 33(1). The ground on which an order may be reviewed under head (a) are that it "was wrongly made as the result of an error on the part of the Tribunal or its staff". The error alleged by Mr Brierley is that his appeal was dismissed before dealing with an application dated 6 August 1999 to amend his Notice of Appeal.
2. Mr Brierley's application of 6 August 1999 was in fact both to amend his Notice of Appeal and for an order for the production of Chairman's notes of evidence. The Registrar directed that these matters be dealt with at the preliminary hearing, pointing out that Chairman's notes were not produced for such hearings and that an application for their production would be considered only if the appeal were directed to proceed to a full hearing. In the event there was no such direction, so that part of the application did not arise and is not, as we understand it, the subject of Mr Brierley's present application for a review.
3. The position about amendment was that there was already outstanding notice of an application for leave to amend dated 11 December 1998, so the document of 6 August 1999 was not an application to re-amend; the content of both could and should, if so desired, have been made the subject of a single application at the outset of the preliminary hearing. At the preliminary hearing Mr Brierley was ably represented by Mr Clayton of counsel and was also permitted to supplement counsel's submissions himself. The only application made was in respect of the 11 December amendments, and that was granted. There was therefore in our view no procedural error on the part of the Tribunal or its staff.
4. Nor was there any error of substance. The amendment sought related to Mr Brierley's evidence that he worked a 39-hour week, and to an admission to the same effect obtained from a witness for the employers. That point was already made in the amended Notice of Appeal; so far as the document of 6 August 1999 raised any new aspect it did so by complaining of the Employment Tribunal's failure to record that evidence, but that aspect was fully developed, and indeed particularly emphasised, by Mr Clayton in the course of his submissions and taken into account by us.
5. The ground on which an order may be reviewed under head (c) of Rule 33(1) is that the interests of justice require such a review. The first point relied upon by Mr Brierley under this head is that as a result of the error already alleged under head (a) "arguments on potential errors of law that I intended to advance by way of Notice of Appeal in August have not been seen". There is nothing in this point, for the reasons given in paragraph 4 above.
6. The second point relied upon is that "the EAT have misunderstood matters under my Notice of Appeal of December 1998". As is apparent from that description, and confirmed by examination of its development in over a page of submissions by Mr Brierley, this is simply a challenge to the rightness in law of our decision and an attempt to have the appeal, or aspects of it, re-argued. Our decision is of course open to such a challenge, but the appropriate procedure for that is appeal, not review.
7. The application is therefore refused.