United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SOLOMAN (of Counsel) Action Law Shop 102/4 High Street London W.3.


 


JUDGE PETER CLARK: The appellant, Mr Tourgman, was employed by the respondent broadcasting company from August 1994 until his dismissal effective on 16th September 1998. He began that employment as a writer/reporter and was subsequently promoted to show producer. He is of Egyptian national origin.

1. On 22nd July 1998 he presented a complaint of unlawful racial discrimination against the respondent to the Employment Tribunal. Following his dismissal he presented a further complaint alleging unfair dismissal and that his dismissal was an act of direct discrimination and/or victimisation contrary to the Race Relations Act 1976.
2. Those complaints were heard by an Employment Tribunal sitting at London (South) over six days followed by a further day's deliberations in Chambers. By a decision with extended reasons promulgated on 9th September 1999 the tribunal dismissed all complaints. In respect of one individual complaint the tribunal's decision was by a majority, in all other respects they were unanimous.
3. It was the respondent's case, accepted by the tribunal, that the reason for dismissal was redundancy. The respondent explained the redundancy selection procedure which it used. That involved a point-scoring system with weighted criteria. One of those criteria related to an employee's disciplinary record.
4. The first basis of the appeal before us against the tribunal's decision is that new evidence has come into the possession of the appellant since the last day of the hearing before the tribunal in mid-July 1999, but before the tribunal's decision was promulgated on 9th September 1999.
5. The evidence which has been put before us for consideration consists of a memorandum from a member of the respondent's management to an employee Lena Tayara dated 28th July 1998. As Mr Solomon, who appears on behalf Mr Tourgman today, put it to us that memorandum was leaked by an employee of the respondent to the appellant in late July 1999.
6. The memorandum, which has been translated, shows that Ms Tayara was accused of unprofessional and sloppy work and shows that she was moved from Mr Gazoulit's current affairs section, he being the author of the memorandum. We do not understand the document to amount to a written warning of future disciplinary action.
7. Nevertheless, it is submitted that that memorandum is new evidence which the appellant could not with reasonable diligence have obtained for use before the tribunal at the hearing. Secondly, that the evidence would have had an important influence on the result of the case and thirdly, that the evidence is apparently credible. That is the test for admitting new evidence on appeal laid down by the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, a test which was specifically adopted by Popplewell J for the purpose of admitting fresh evidence before the EAT in Wileman v Minilec Engineering Ltd [1988] ICR 318.
8. The first point that occurs to us is that that is matter which ought to have been dealt with by way of review. Under the Employment Tribunal Rules of Procedure, Rule 11(1)(d), provision is made for a review of the tribunal's decision to take place when new evidence comes to light which ought properly to be admitted and considered by that tribunal. No such application for review was made.
9. Nevertheless, we have dealt with the application on its merits before us. The real question, we think, is whether that evidence would have had an important influence on the result of this case.
10. Mr Solomon tells us that under the point-scoring system Ms Tayara, who was a relevant employee within the same selection pool as Mr Tourgman, scored a total of 560 points, Mr Tourgman scored 450. We are told that the employee's disciplinary record criterion attracted a maximum of 120 points. In this particular exercise Mr Tourgman scored 90 points under this criterion, Ms Tayara scored 60.
11. It therefore follows, putting the case at its highest for the appellant, that if in the light of that memorandum Ms Tayara should have scored '0' under that head, she would nevertheless have been ahead of Mr Tourgman in final scoring. That is putting the case at its highest.
12. It is said that the respondent's witnesses Mr Hart and Mr Ghanem were specifically cross-examined about Ms Tayara's disciplinary record. They denied that she had a bad disciplinary record.
13. We are not satisfied, on the face of the memorandum which we have read, that it is inconsistent with those answers, assuming that they were given. For these reasons, we have concluded that it would not be right to admit this fresh evidence on appeal and accordingly that ground of appeal goes.
14. In the Notice of Appeal, not settled by Mr Solomon and before he was instructed, points are taken about cases which were subsequently settled with other employees who complained over racial discrimination and/or sexual harassment. There seems to be no relevance in those matters for the purpose of this case and Mr Solomon does not pursue that point in the appeal.
15. Finally, and this point was not raised in the original grounds of appeal, Mr Solomon submits that the tribunal in its reasons failed to consider evidence given by Miss Amal Jazaerli in her witness statement which was before the tribunal and which was not, we are told, contradicted in evidence by the respondent.
16. The proposition which was advanced at paragraph 6 of Mr Solomon's skeleton argument was that in her witness statement Miss Jazaerli had been told by Mr Hart, prior to the redundancy procedure having commenced, that he, Mr Hart, intended to dismiss the appellant.
17. We have been shown a copy of the witness statement and the picture is rather different. In that statement Miss Jazaerli says that on an occasion on 20th July when the redundancies were happening, she saw Edwin Hart and in a conversation on that occasion, Mr Hart mentioned the appellant and said "I only need ten people there, and I cannot pay a presenter's salary for a writer/reporter's job, and certainly I don't need people like Abdou Tourgman, who took sick leave for stress."
18. It seems to us that two points arise on this submission. The first is that the evidence of Miss Jazaerli is not as stated by Mr Solomon in his original submission. It seems that on her evidence that conversation occurred whilst the redundancy procedure was in train. But secondly and more generally, we take the view that this tribunal dealt carefully and fully with the various allegations that were made in this case in the course of their reasons. It is not necessary for an Employment Tribunal to set out each and every piece of evidence or point in dispute in the course of their reasons. It is enough that they give sufficient reasons to tell the parties why they have won or why they have lost. The mere fact that that particular piece of evidence was not mentioned in their reasons does not, it seems to us, necessarily mean that the tribunal ignored it; rather that they did not consider that it was sufficiently material to merit mention. Again, we do not think that this point has a material bearing on the overall findings of the tribunal. That being the final point taken in this appeal, we conclude that there are reasonably arguable points of law to go forward to a full appeal hearing and accordingly, this appeal must be dismissed at this preliminary hearing stage.