United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M SETHI (of Counsel) Instructed by: Messrs Taylor Willcocks Solicitors Essex House 12-13 Essex Street London WC2R 3AA
For the Respondent	MR S T CHEVES (of Counsel) Instructed by: Messrs Machins Solicitors Victoria Street Luton LU1 2BS


 


MR JUSTICE MAURICE KAY:

1. I have been reminded by my colleagues that about 10.15am I told them that I was going to declare an interest to you, namely that I am a council tax payer in the London Borough of Lambeth. I forgot to do that at the outset of the hearing. If either of you wants to make any representations about that they will be considered. I do not feel partial in any way but are either of you concerned about my status as a Council tax payer? This case has a curious history. The applicant was employed between February 1984 and October 1997 as a Refuse Collector by the London Borough of Lambeth, or at least by a company which provides refuse collection for the council, namely the respondent Lambeth Service Team Ltd. He was eventually dismissed. The detailed factual circumstances do not require description. The employer came to the conclusion that he was guilty of gross misconduct by reason of collecting rubbish from premises which were not registered as trade premises and were not domestic premises.
2. He complained to an Employment Tribunal that he had been unfairly dismissed and on 29 July 1998 the Employment Tribunal at London South concluded that he had been unfairly dismissed and adjourned the matter for a remedies hearing. The finding was based on evidence which came effectively from the Appellant himself. It is clear from the decision that the Employment Tribunal had misgivings about that evidence but since it was substantially uncontrodicted felt bound to accept it. However in so doing it expressed itself in some what unusual terms. It seems that the decision that there had been an unfair dismissal was announced at the end of the hearing, prior to the provision of extended reasons at a later date. However, when announcing its decision that there had been unfair dismissal, the Tribunal indicated the misgivings that it had about the evidence of the Appellant. The decision with the extended reasons contains this passage:

"The Tribunal made it clear at the conclusion of its oral statement of decision to the parties that it would have been better able to reach its conclusion had it had evidence to support the Respondents proposition that the correct view of the prohibition on collection of commercial waste from trade premises, covered all waster domestic or commercial from commercial or trade premises."

A little later it said:

"In the event the Tribunal had no means of deciding whether Mr Woods interpretation was sufficiently viable for it conclude that he genuinely held that view. In the view of the Tribunal it was also necessary to decide whether it should reasonably have occurred to the Respondent that Mr Woods might hold such a view. If it should reasonably have occurred to the Respondent, then in the view of the Tribunal, the Respondent should have enquired whether Mr Woods did hold that view. In view of the significance that the Tribunal attaches to this missing evidence the Tribunal invited the Respondent to consider making an application for review of the decision in respect of Mr Woods, if after discussion the Respondent concluded that it had evidence that would affect the Tribunal's decision as to the reliability of Mr Woods evidence on this point."

3. That it seems to us was an invitation to apply for a review. That is a curious thing to have taken place. If the Tribunal felt itself in difficulty as to the matters upon which and the persons from whom it had received evidence, then it might have considered adjourning the matter for the calling of further evidence, prior to making to any decision. However, that is not what occurred. What occurred was that a decision was made on the evidence and submissions that were by then complete and, upon the announcement of the decision, there was what seems to us an invitation to consider applying for a review upon the basis of further evidence. The next thing that happened, was that by letter dated 26 August 1998 the Respondent did apply for a review, adding at the end of a 4 page letter:

"We confirm we have supporting evidence in relation to our application."

There is an issue about that letter. There is no evidence that it was faxed to the Tribunal; if it was posted then the earliest it could have reached the Tribunal would have been 27 August and by then, an application for a review would have been one day out of time, in that by r.11 (4) of the Employment Tribunal (Constitution etc) Regulations 1993 schedule 1, an application for a review may be made at the hearing but if no application is made at the hearing, it made be made as any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties. That may in itself be but a small point along the way because it seems to us that pursuant to r.15 there is a power in the Tribunal to extend time.

4. The gist of the application for review was that the Appellant's account given at the original hearing was not correct and that the Respondent by the calling of evidence was in a position to show that it was not correct. A review hearing then took place. That was on 20 November 1998 on that occasion it seems to us that the Tribunal heard two Managerial witnesses called on behalf of the Respondent but their evidence took the matter no further. What was in issue was the state of knowledge of the Appellant. For reasons which we do not understand, the Appellant entered the witness box again at the review hearing. In the course of cross-examination on that second occasion, he gave evidence at variance with that which he had given at the original hearing. We quote from a passage in the decision following the review hearing, where the Tribunal stated:

"In the course of this review hearing, during cross-examination of Mr Woods, Mr Woods clearly stated that he knew that the refuse he was collecting was commercial waste. He had said at the previous hearing that he understood that he could collect two bags of waste from the premises, and he now said that his understanding was that he could collect 1 bag of domestic waste and 1 bag of commercial. He said at this hearing that that is what he had always been told and that he had been in the habit of making a note on his round sheet, if premises had more than 2 bags of waste, that they should be required to enter into a commercial waste agreement. It would be apparent that this evidence differs fundamentally from the evidence upon which the original decision relied. It may be although the Tribunal does not think it is so, that the Tribunal had misunderstood Mr Woods evidence on the first occasion. If that is so, then the Tribunal's original decision is simply wrong on its finding of fact. If as the Tribunal believes, its earlier decision was based on the evidence given by Mr Woods at the original hearing, then that evidence has been changed by Mr Woods during cross-examination in this review hearing."

5. The upshot of all this is that at the conclusion of the review hearing, the Employment Tribunal decided to review its previous decision and as a result of that review, amended its previous decision and decided that the application for unfair dismissal failed. This appeal to the Employment Appeal Tribunal seeks to challenge that decision. The holding of a review hearing is something which can only take place, pursuant to r.11 (1) of the 1993 regulations. It provides as follows:

"Subject to the provisions of this rule the Tribunal shall have power on the application of a party of its own motion to review any decision on the grounds that:

a) The decision was wrongly made as a result of an error on the part of the Tribunal staff

b) A party did not receive notice of the proceedings leading to the decision

c) The decision was made in the absence of a party

d) New evidence has become 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 or

e) The interests of justice require such a review."

Where a Tribunal is to review a decision of its own motion, it has 14 days, beginning with the date of hearing within which to send notice to the parties explaining in summary form the ground upon which and the reasons why it is proposed to review the decision and giving them an opportunity to show cause why there should be no review. That was not done in the present case. What occurred on the occasion of the review hearing must therefore have been a review, which if it were to have taken place with jurisdiction would have to have been one pursuant to the application made on behalf of the Respondent.

6. Whether or not the Tribunal ought to have invited a review on the occasion of the original hearing, the fact is that an application for a review was made on behalf of the Respondent. It is common ground that if it had any foundation, it could not have been under r.11 (1) (a) (b) or (c) and that the only provisions required to be considered are r.11 (1) (d) and (e). Although the Respondent had indicated in its application that it had supporting evidence in relation to the application, the fact is that, as we have already rehearsed, the witnesses produced by the Respondent added nothing. The Tribunal placed no reliance upon their evidence in changing its decision. It seems to us that it is impossible to squeeze what took place within r.11 (1) (d). Even if the Respondent had had evidence at its disposal, it would have been evidence, the existence of which must have been reasonably known of or foreseen at the time of the original hearing. The question therefore becomes one of whether this is a case to which r.11 (1) (e) applies. The predecessor of r.11 (1) (e) was considered in Flint & Eastern Electricity Board [1975] ICR page 395 in which Mr Philips J said at pages 401- 402:

"The difficulty comes in the relationship between paragraphs (d) and (e). The conclusion I reach is that paragraph (d) cannot be regarded as exhaustive of cases where the ground of the application is the desire to call fresh evidence. It does not, for example, deal with circumstances where although the evidence could be foreseen or indeed reasonably or actually known, it was for some reason or another not available. I think that paragraph (e) is intended to be a residual category of case, designed to confer a wide discretion on industrial tribunals, but I do not think that it can embrace a case, where the application is on the ground of the desire to call fresh evidence, where it was obvious that that evidence was available and there is no additional factor to be taken into account. In other words, if I may summarise it, paragraphs (d) and (e) are not mutually exclusive but paragraph (e) at all events must be applied in practice with some regard to the kind of case which is intended to come within paragraph (d) and ordinarily speaking, a case which would be put forward under paragraph (d) and which failed under paragraph (d) would fail under paragraph (e) also. Paragraph (e) I think, exists for the case which although it may be put forward under paragraph (d) has in it some special additional circumstance which leads to the conclusion that justice does require a review."

7. The rival submissions on this point in the present case can be referred to with brevity. Mr Sethi on behalf of the Appellant submits that quite plainly the letter of application for a review disclosed no grounds for a review that came within r.11 (d) or (e) and the calling of evidence by the Respondent at the review hearing underlined that fact because none of that evidence had any bearing on the subsequent review decision. His submission is that there was no jurisdiction for the review hearing, which took place on 20 November. Neither counsel was present on that occasion and just how or why the Appellant reappeared in the witness box remains a mystery. However the application for a review had not been for the further cross-examination of the Appellant but to call evidence. The Respondent had called no meaningful evidence and no jurisdictional basis for the review hearing has been established. Any further cross-examination of the Respondent could only be in the form of questions which could have been and/or were asked of him at the original hearing.
8. The submission of Mr Cheves on behalf of the Respondent is that whatever may be the correct analysis of the constitution of the review hearing, one cannot ignore the evidence which the Appellant in fact gave and the evidence that he gave contradicted what he had said on the earlier occasion. Thus, submits Mr Cheves, it is in the interests of justice that the Tribunal, even if it had then embarked upon a review initially without jurisdiction, should not ignore that evidence. From the moment it was given relevant evidence, which the interests of justice favoured consideration of, if not from the outset, the conditions for a review were satisfied. When the Tribunal had applied its mind to the two different accounts given by the Appellant, it said this:

"Whichever is the correct explanation, it is clear that the Tribunal's earlier decision cannot stand in the light of the evidence it now has. It is of course for the Respondent to justify an application for review that the Tribunal sees no reason why the Respondent having failed to do so in its own evidence in chief should not succeed in doing so in cross-examination. The Tribunal must now ask itself whether a reasonable employer faced with an admission by someone in charge of a refuse collection crew that he was well aware that he was collecting commercial waste, might not reasonably resolve upon dismissal. That is a very different question from the one which the Tribunal asked in the penultimate paragraph of its previous decision."

9. In our judgment the fundamental question in this case is whether the decision made on the review hearing was a decision made with jurisdiction. We have come to the clear conclusion that it was not. The review which took place, whether or not as a result of an earlier invitation, did not take place as a result of a correct application of r.11 (1). Without speculating as to how or why the Appellant re-entered the witness box on 20 November 1998 at the moment he did so he did so within proceedings which were not the subject of jurisdiction on the part of that Employment Tribunal.
10. In those circumstances we have come to the conclusion with some regret that the review decision cannot stand because it was a decision made without jurisdiction. It follows from that that this appeal must be allowed and the decision made on the review hearing must be set aside. Mr Cheves invited us if we were to reach that conclusion, to consider remitting the whole matter back to a differently constituted Tribunal, so that the original decision should be quashed as well and the matter considered afresh. We do not feel able to accede to that invitation; there was no appeal against the original decision, there was no error of law on the face of that decision but there was a peculiarity in the form of an invitation to the Respondent to consider an application for a review. However, that peculiarity is not one which prejudiced the Respondent.
11. In those circumstances it seems to us that the consequence of our decision is that, having quashed the decision made on the review hearing, the matter must now return to the Employment Tribunal and we should add a differently constituted Employment Tribunal, so that remedies can be considered. In the course of this hearing, we have been concerned to canvass with counsel what the position might be on such a resumed remedies hearing if the Respondent sought to cross-examine the Appellant upon his contradictory statements as between the original hearing and the review hearing. We have heard some interesting improvised submissions on that subject. It seems to us that in the normal course of things, it would be for the Employment Tribunal seised of the matter to consider whether or not to allow any such cross-examination, if it were sought. It is not for us to fetter that discretion.
12. This decision and the allowing of the appeal is one that we have come to with some reluctance, having regard to all that we know about this case. It is a case which has proceeded now for some considerable time. It is almost two years since the original hearing and going on for three years since the dismissal. We would hope that the parties might now reach a solution of their differences without the need for a further hearing, having regard to the passage of time and the incurring of costs, which has taken place. Beyond that it is inappropriate for us to say anything more.