HIS
HONOUR JUDGE DAVID RICHARDSON
1.
This is an appeal by Mr Obhiose Benjamin Ogedegbe (“the Claimant”)
against a decision of Employment Judge Prichard sitting at the London East
Employment Tribunal dated 2 November 2011.
2.
The Claimant had brought proceedings against Stag Security Services
Limited (“the Respondent”) alleging automatic unfair dismissal contrary to
section 100 of the Employment Rights Act 1996 and race discrimination.
By judgment dated 6 June 2011 the Tribunal dismissed those claims; and a
subsequent appeal by the Claimant has been dismissed under rule 3(7) of the Employment
Appeal Tribunal Rules 1993.
3.
By letter dated 4 August 2011 the Claimant applied for a review of the
judgment, seeking to adduce fresh evidence. It was this application which the
Employment Judge refused, saying (1) that it was refused under rule 35(3) of
the Employment Tribunal Rules of Procedure 2004 and (2) in any event,
under “rule 33(1)”, it was not just and equitable to extend time for
consideration of the application. The reference to rule 33(1) is, I have no
doubt, a slip – the applicable rule being rule 35(1).
Legal background
4.
The Employment Tribunal has a power to review a judgment such as the one
it made on 6 June 2011. The grounds are set out in rule 34(3). They include:
“34(3) Subject to paragraph (4), decisions may be reviewed on
the following grounds only –
(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 our foreseen at that
time; or
(e) the interests of justice require
such a review.”
5.
The procedure for dealing with such an application, so far as it is
material to this appeal, is set out in rule 35(1) and (3).
“35 Preliminary consideration of application for review
(1) An application under rule 34 to have a decision reviewed
must be made to the Employment Tribunal Office within 14 days of the date on
which the decision was sent to the parties. The 14 day time limit may be
extended by an Employment Judge if he considers that it is just and equitable
to do so.
(3) The application to have a decision reviewed shall be
considered (without the need to hold a hearing) by the Employment Judge of the
tribunal which made the decision or, if this is not practicable, by –
(a) a Regional Employment Judge or
the Vice President;
(b) any chairman nominated by a
Regional Employment Judge or the Vice President; or
(c) the President;
and that person shall refuse the application if he considers
that there are no grounds for the decision to be reviewed under rule 34(3) or
there is no reasonable prospect of the decision being varied or revoked.”
6.
As a general rule an application to adduce fresh evidence, if it is to
be successful, will need to satisfy the following criteria: firstly, it must be
shown that the evidence could not have been obtained with reasonable diligence
for use at the hearing; secondly, the evidence must be such that, if given, it
would probably have an important influence on the result of the case; thirdly,
the evidence must be apparently credible, though it need not be
incontrovertible. These are the tests laid down in Ladd v Marshall [1954] 1 WLR 1489. The formulation in rule 34(3)(d) represents in effect
the first of these criteria; but all are relevant to the question whether there
should be a review.
7.
The Appeal Tribunal hears appeals only on points of law: see section
21(1) of the Employment Tribunals Act 1996. All questions of fact and
evaluation are for the Tribunal; and if it applies the law correctly there is
no right of appeal. The Appeal Tribunal is concerned to see whether the
Tribunal has applied correct legal principles and reached findings and
conclusions which are supportable, that is to say not perverse, if the correct
legal principles are applied. A finding or conclusion is perverse if and only
if it is one which no reasonable tribunal, on a proper appreciation of the
evidence and the law, would have reached.
Factual background
8.
The Respondent is a large security company employing some 480 people
working over many sites. Its main control room is in Harrogate. There were
two controllers at the relevant time – Mr Smith and Mr Hill. There was a London manager, Mr Hughes.
9.
The Claimant was employed by the Respondent with effect from 5 May
2009. By September 2009 he was employed as a mobile patrol driver at the
Costain Construction site at the Olympic development in East London. He worked
12 hour shifts, generally on nights taking over from Mr Mohammed Ahmed. They
drove a Fiat van which had wing mirrors but no internal rear view mirror.
10.
There is no doubt that, over the night shift from 6pm on Thursday 10
September to 6am on Friday 11 September, a dispute arose involving the Fiat
van.
11.
On Monday 14 September, just 3 days later, the Claimant wrote a letter to
the Employment Tribunal under the title “£50,000 compensation claim”. He set
out his complaint in some detail. He said that on Monday 7 September Mr Ahmed
had telephoned him to tell him that the side mirror of the van had been damaged
and that he had reported the matter to the control room. The Claimant said:
“When I went to work on Thursday 10th September 2009
at 5:35pm to start my shift at 5;45pm, I discovered that the mirror on the
driver’s side of the patrol van had been destroyed and had come off the patrol
van.
Photos of the patrol van showing the missing side mirror are
attached. I reported the matter to the control room of Stag Security Services
Ltd and told them that it was unsafe and dangerous for me to drive the patrol
van without the mirror being repaired or replaced because I could get injured,
killed, kill some one else or cause more damage to the patrol van through
accident. But one of the control room officers, Jason or Mills, told me that I
must drive the patrol van without the mirror being repaired or replaced and
when I refused, he told me to go back home without working for that night and I
went back to my home.
When I got back home on the same day, the operations manager, Mr
Eddy Hughes phoned me and told me to go back to work and drive the patrol van
without the side mirror being repaired or replaced and I told him that I
couldn’t for health and safety reasons. I told him I was prepared to drive the
patrol van after the side mirror had been replaced or repaired.
On Friday the 11th September 2009, Mr Mike Buck, from
the control room phone me and told me to go to work and drive the patrol van
without the side mirror being repaired or replaced and I told him that I
couldn’t for health and safety reasons. Mr Mike Buck then told me that they
intended to repair or replace the side mirror in the year 2012 and that I would
be sacked and be offered no more work again if I did not drive the damaged
patrol van. I told him I was not going to risk my life and drive the damaged
patrol van and he told me that I will not work for the company again and that
he will remove my name from the rota list which he did.
The company has refused to offer me any work since then but
instead has employed another person to do my shift after the side mirror was replaced.
Employers who put the lives of their employees at risk should be
punished and fined for breaking the law relating to the Health and Safety Act
of 1974.”
12.
The reference to Mr Burke was a mistake. By the time of the Tribunal
hearing it was accepted that the person who spoke to him from the control room
was Mr Smith.
13.
After giving this account the Claimant set out his claim for £50,000
compensation. He said he suffered from “depression, trauma, nightmares, loss
of earnings and sleepless nights”; that the Respondent would not have treated a
white man similarly; and that it was wrong to stop him working because he
adhered to health and safety rules.
14.
Within a month the Claimant lodged a formal claim with the Employment
Tribunal. His claim form was consistent with (though less detailed than) his
earlier letter.
15.
On 2 November 2009 the Respondent lodged its response. It did not
accept that the Claimant was dismissed; it said that he refused to continue
working. Printed in the “additional space for notes” was an account headed by
the words “Statement from Edward Hughes 12/09/2009”. This reads as follows:
“I Edward Hughes was informed during the morning of 10/09/2009
that the wing mirror was
damaged so purchased a replacement on the 10/09/2009 so I bought
a replacement glass mirror and drove to Tl site were 1 asked them to park the
van. On my arrival which was about 6pm I then found out it was not the glass
that was broke but the plastic housing, the glass was intact and the mirror was
just hanging with the housing unit loose I was unable to fix so contacted Stag
Control to ascertain if there was any fiat garages in the area open late to
enable the vehicle to be fixed.
I called the driver who was Benjamin and asked him were he was
he told me he was home, I said but you are Rota to work so please came back to
TI, he said immediately he is not driving the vehicle, I said ok but come back
to T1 so we can have a talk. He then informed me he had been there and was now
home so had no intention of going back to TI, I informed him he is to work his
shift even if he does not drive he should be on site as we never said to him to
go home, he then asked what did I intend to do with the mobile vehicle, again I
informed him that he should come to Tl so we can have a proper discussion as I
did have a plan. He said is the mirror fixed, I said no I will have to order a
new housing on Monday - he said I am not coming I have been there already, I
said please attend Tl, you have to do a mobile patrol and I have a van that I
normally use and you can use that until the mirror on the other vehicle is
fixed and I will drive the fiat.
Again he refused and said he did not want to do the mobile and
again insisted on Chatham, or the job as a Guard support Manager.
Benjamin was interviewed a week before for the job of Guard
support manager. As for Chatham he heard we were paying £8.50ph and had already
called me for that job a few days before to which I replied that the pay rate
he was given is not true and someone was winding him up. But he insisted he had
good info and that was the pay rate and he wanted that job. I informed him it
was not the correct rate and the site was fully manned, he then asked who I had
appointed as the new Guard support Manager, I said no one as it was now on hold
until further notice, I also said if he was a guard support manager his
attitude was not good and what would he do if he had to face this situation
with the broken mirror, he said he would drive the van, so I asked so what was
the difference if he had a title as guard support manager or just a guard he
said the difference is in the money he would have a lot more as a GSM, I said
anyway I don’t agree and that’s not the attitude we want from our managers,
came back to Tl and take van, he said no he may attend tomorrow, he will call
control and let them know his discussion tomorrow. I told him that was
unacceptable as this is his shift, he then asked again who got the GSM
position, again I informed him that no one got the position he said the other interviews
were white and I was discriminating on him, I told him don’t talk rubbish, as I
only have one white GSM and the rest of my GSM are Black and he new that. He
said he is not doing the mobile patrol any more, I told him I don’t have any more
positions available he then said well consider this my resignation.”
16.
In this way the factual case for both parties was set out at an early
stage in the proceedings. The Claimant was saying he was dismissed on health
and safety grounds; the Respondent was saying he resigned.
The Tribunal hearing and reasons
17.
During the hearing the Tribunal took evidence from the Claimant and from
a number of witnesses for the Respondent, including Mr Ahmed (described by the
Tribunal as Asian) and Mr Smith.
18.
The Tribunal did not, however, hear from Mr Hughes, who had left the
Respondent by this time. The Respondent did, however, adduce what appeared to
be a copy of a signed witness statement from Mr Hughes which accorded with the
version in the ET3. It also produced what appeared to be a copy of an email
from Mr Hughes dated 30 October; this email is for the most part in the same
terms as the statement, but there are some differences and what would seem to
be at least one deliberate change.
19.
The copy signed witness statement from Mr Hughes was dated 12 September,
very shortly after the events in question. Oddly, it bears the case number of
the tribunal proceedings, even though they were not commenced until some time
later.
20.
The Tribunal was critical of the Claimant’s claim. It said that it had
“all the appearance of the claimant contriving a health and safety claim and a
race discrimination claim in support of an incredibly large claim for
compensation.”
21.
In support of this the Tribunal said:
“35. It is nonsensical that in a letter to the tribunal written
only three or four days after these incidents the claimant can describe a
history of mental disturbance and ill health and nightmares, as a result
of something which had only just occurred at his employment. There is a
medical report which he has put before the Tribunal which actually contradicts
his claim for personal injury compensation from the respondent.”
22.
The Claimant had lodged a medical report dated 25 March 2010. This
said:
“He was seen in the surgery on 15 March 2010 complaining of low
mood, poor appetite and difficulty sleeping. He describes experiencing these
symptoms since the start of the recession when his mortgage business started to
have difficulties. The situation has failed to improve and is now causing a lot
of financial difficulties. He feels that his symptoms are getting worse as a
result and he is now finding it difficult to cope. On examination he showed
significant psychomotor retardation and was low in his mood. His presentation
is consistent with reactive depression. He was started on anti-depressants and
to be reviewed in two weeks.”
23.
The Tribunal commented that this report “signally fails to mention” the
incident involving the Respondent in any way, even though it was the subject of
what the Tribunal described as “this extraordinarily large tribunal claim”.
24.
In its findings of fact the Tribunal placed significant reliance on the
statement of Mr Hughes; his statement was the only evidence, apart from that of
the Claimant, to a key conversation which took place between them. The
Tribunal’s reliance on his statement is apparent, for example, from the last
sentence of paragraph 14 of its reasons; from paragraph 15; from paragraph 17;
from paragraph 20; and from paragraphs 23 and 24. In particular it accepted
that he resigned on the night of 10 September “because he stated so to Mr
Hughes”; and that the Respondent did not insist on his driving the vehicle.
25.
It is right to observe that the Tribunal did not always reject the
Claimant’s evidence: in particular, it preferred his evidence to that of Mr
Ahmed concerning the date when the wing mirror of the Fiat van was damaged: see
paragraph 10 of its reasons.
26.
Its finding that he resigned even though the Respondent did not insist
that he drove the vehicle was sufficient to dispose of the unfair dismissal
claim. The Tribunal turned to consider the discrimination claim. It found
that the Respondent had a high proportion of black and African, Asian and
ethnic minority staff. It considered each of the Claimant’s complaints (which
related to the failure to recruit him for a particular job as well as aspects
of the incident in question) and rejected them.
The application for review
27.
Following the Tribunal’s judgment the Claimant promptly appealed,
lodging his Notice on 10 June. The Notice of Appeal included grounds relating
to fresh evidence. In accordance with its usual practice the Appeal Tribunal
by order dated 28 July stayed consideration of the appeal to give the Claimant
an opportunity to apply for a review on those grounds. The Claimant made his
application by letter dated 4 August.
28.
It is convenient to take the categories of fresh evidence upon which the
Claimant relied separately for the purposes of considering the Claimant’s
appeal.
GP Medical report
29.
The Claimant enclosed a further report from his GP dated 2 August 2011.
This report, unlike the report dated 25 March 2010, mentions that his symptoms
were “exacerbated by his dismissal from his security job at Stag Security
Services Limited”. The Claimant submits that this is fresh evidence which
would have made a significant difference to the outcome of his claim. He
specifically told me, in the course of submissions, that he did not tell the
doctor in March 2010 that his condition was made worse by his dismissal.
30.
In my judgment the Employment Judge was plainly right to reject this
category of further evidence. The point which the Tribunal drew from the
report in March 2010 was that when the doctor saw the Claimant he did not
attribute his symptoms to what had happened with the Respondent. This point
is not undermined by a further report 15 months later. The point which the
Tribunal drew from the report was, on the submission of the Claimant to me
today, in fact correct. But if it had not been, and the report dated 25 March
2010 had required correction, the Claimant had ample time to produce an
accurate report prior to the hearing, which did not start until December 2010.
Mr Cole
31.
The Claimant enclosed a witness statement from Mr Abu Cole dated 3
August 2011. The Claimant submits that the witness statement of Mr Cole would
have an important influence on the case because (1) he confirmed the date of
the damaged mirror and (2) he confirmed that Mr Mohamed Ahmed is black
African. He also says that, contrary to the Employment Judge’s belief, Mr Cole
was not his friend; he was an employee of the Respondent at the relevant time.
32.
The Employment Judge said the following:
“7. In the same category, having no influence on the outcome of
the case, is the new witness statement from Mr Abu Cole. In any event it is
also hard to see why that statement could not have been obtained before.
9. The respondent confirmed that Mr Cole was a friend of the
claimant further emphasising the possibility of having got a statement from him
before the Hearing, rather than the extraordinary procedure of playing the
recording of a telephone message from him from the night before on speaker
phone from the claimant’s mobile phone at the Hearing. The voicemail was full
of background noise and barely comprehensible, in any event. The fact Mr Cole
attests as to the date on which the mirror was broken is not, as explained in
the judgment, the material issue in the case. It was the claimant’s conduct
when he effectively resigned, as we find.”
33.
In my judgment the Employment Judge was plainly entitled to reach the
conclusions he reached. On the question whether the Fiat van had been damaged
earlier in the week Mr Cole’s evidence was supportive of the Claimant’s case –
but the Claimant’s evidence in this respect had been preferred to that of Mr
Ahmed in any event (paragraph 10 of the earlier reasons).
34.
The Claimant did not emphasise the evidence about Mr Ahmed being a black
African in his application for a review, and the Employment Judge did not deal
with it. In truth, however, this would have made no difference to the outcome
of the case. Indeed, Mr Coles’ evidence was inimical to the Claimant’s case
that the Respondent did not repair the car quickly because it was being driven
by black drivers; Mr Coles’ evidence is that substantial efforts were made to
get the van repaired. There was no basis for finding that the Respondent’s
approach to the question whether the van should be driven without a wing mirror
had anything to do with race.
35.
Moreover it was for the Claimant to satisfy the Employment Judge that
the evidence could not have been obtained with reasonable diligence for use at
the hearing. If the Claimant thought that Mr Cole’s evidence would favour him,
it was open to him to contact Mr Cole and obtain a statement from him; or apply
for a witness order in respect of him.
Mr Hughes
36.
The Claimant’s case is that when he received the Tribunal’s judgment he
contacted Mr Hughes; Mr Hughes confirmed that, contrary to the Respondent’s contention,
he had not signed the witness statement which apparently bore his signature;
and emailed to the same effect. There is indeed in my bundle a paper copy of a
chain of emails in which Mr Hughes (whose email address has been confirmed by
the Respondent) appears to say that he has not signed any witness statement and
that any email which he wrote was much earlier than 30 October.
37.
The Employment Judge, on receiving the application for a review, wisely
wrote to the Respondent. He asked for “any factual observations from the
Respondent as to Eddie Hughes’ statement, its authorship, when it was signed
and a verification of Mr Hughes’ email address”. Unfortunately the
Respondent’s reply was less than helpful.
38.
While confirming Mr Hughes’ email address, the Respondent provided very
limited information as to how the statement came to be written and signed. It
stated simply that: –
“The statement by Eddie Hughes dated 29/9/09 was signed by Eddie
Hughes. Stuart Watson was present when this statement was signed. Cross
examination has already taken place on this issue and was resolved in favour of
the Respondent.”
39.
The statement before the Tribunal was not dated 29 September, as I
confirmed with both parties during today’s hearing: it was dated 12 September.
I asked the Claimant how the matter arose at the Tribunal. He said that he has
spoken to Mr Hughes on the telephone by the time of the hearing in December.
He made the point that Mr Hughes was saying he had not provided a statement and
(he told me) gave the telephone number of Mr Hughes to the Tribunal. He says
the Employment Judge noted that the statement could hardly have been correctly
dated 12 September. The Employment Judge asked for an explanation, but this
was never provided. He said that neither side took the matter any further; but
when the judgment was given he telephoned Mr Murphy, the telephone call leading
to the chain of emails which the Employment Judge had before him. In essence
the Claimant was saying that he did not appreciate the importance of this
matter until the judgment was given; and that prior to judgment it had been
left that it was for the Respondent to establish the validity of the documents
which were put forward from Mr Hughes.
40.
The Respondent’s response also said that the chain of copy emails
“appears to have been cut and pasted” without drawing any conclusion from that
assertion. The Claimant, in a letter in reply, stated that the emails were
genuine.
41.
The Employment Judge’s reasoning on this part of the application is as
follows: –
“10. Mr Hughes' written evidence, by contrast, did have some
influence at the Hearing, at least as valuable corroboration. If it were wholly
false that might have affected the outcome. Of the Hughes chain of
emails the respondent says they ‘appear to be cut and pasted’.
11. The Judge has examined this hard copy print out of an
alleged email exchange. It strikes the Judge forcibly that it is not genuine.
It is not like any other email chain. There is no record in the chain of emails
being received from the email address - bandayho@aol.com. There are only
records of email transmissions from the claimant to that address. It is
unsure whether that address is still current for Mr Hughes and the respondent
has not confirmed this one way or the other, which is singularly unhelpful.
Obviously it was not appropriate for the Judge himself to seek evidence or to
try to contact Mr Hughes.
12. The remarks attributed to Mr Hughes have all the hallmarks
of having been drafted by the claimant himself. Examining the wording and style
of the passages attributed to Mr Hughes, they appear to have been written by
the claimant. The entire chain appears to be bogus and a forgery. Far from
being ‘not necessarily incontrovertible’ this chain of email correspondence is
forged. It is disappointing that the respondent has not done more investigation
into the matter having been invited to do so by the Employment Judge. It is
highly doubtful if the claimant would be able to forward a genuine email chain
of correspondence between himself and Mr Eddie Hughes to any third party who
could verify the genuineness of these emails by clicking on ‘Properties’, and
the email addresses within Outlook. As stated, it seems to be a forgery, and
not very sophisticated.
13. In all the circumstances, it could hardly be just and
equitable to extend time for this review application in any event. Nonetheless
as the EAT has expressly stayed their proceedings to allow the claimant to
apply for a review out of time, it is only right that the review should be
given a preliminary consideration on its merits as well, as I have done.”
42.
The Claimant says that the emails which he sent to the Tribunal were
indeed genuine; this is how they appear on the web site where he keeps his
email; and it is how they printed out as a chain. He says that the three
tests are satisfied in respect of these emails and that the Employment Judge
has not properly addressed them because he has reached a conclusion, to the
effect that the emails are forged, which is unwarranted and to which he had no
opportunity to respond.
43.
It is plain that the Employment Judge’s findings in paragraphs 10-13 are
based upon his conclusion that the copy chain of emails which the Claimant
produced was forged.
44.
On behalf of the Respondent Mr Steven White submits that the Employment
Judge was entitled to reach this conclusion. He submits that it was a robust
finding of fact which, building on the conclusions of the Tribunal as to the
Claimant’s credibility, was within his province. He drew my attention to
familiar authorities on the question of perversity: British
Telecommunications v Sheridan [1990] IRLR 27 and Yeboah v Crofton
[2002] IRLR 634.
45.
I have some sympathy for the Employment Judge, who had received no
adequate reply from the Respondent and felt constrained to make his preliminary
assessment on the basis of the limited material before him. However, in my
judgment the Employment Judge was not entitled, upon that material, to come to
the conclusion that the chain of emails was forged. His own view of the way in
which chains of emails ought to appear on a computer was an insufficient basis
for such a serious conclusion; and an allegation of this seriousness ought to
have been put specifically to the Claimant before it was upheld. The Claimant
would have been able to point to a specific email from Mr Hughes which, unlike
the chain, did have his email address its head.
46.
The questions for an Employment Judge conducting a preliminary
assessment under rule 35(3) are firstly whether there are grounds for the
decision to be reviewed (ie whether the application potentially comes within
rule 35(3)); and then whether there is any reasonable prospect of the decision
being varied or revoked; and he must, in a case such as this, also consider whether
to extend time for the application. To my mind the Employment Judge was
diverted from these questions by deciding first, and impermissibly, that the
chain of emails was forged. In my judgment the whole of the Employment
Judge’s reasoning on this part of the case is vitiated by his conclusion that
the chain of emails was forged.
47.
Mr White submits, in the alternative, that on any view the three tests
which the Claimant was required to meet were not established by him in this
case. As to (1), the Claimant knew at the time of the December hearing that Mr
Hughes was saying the statement was not his – it was for him to adduce that
evidence before the conclusion of the hearing. As to (2), it would not have
had an important influence on the outcome of the case, since Mr Hughes’
evidence was only corroborative. He also submitted that in the absence of a
witness statement from Mr Hughes it was impossible to say whether his evidence
would have an important influence on the outcome of the case, or would be credible.
48.
At this point it is important to bear in mind the limited role of the
Appeal Tribunal, which is to correct errors of law. The Appeal Tribunal is
entitled to substitute its own conclusions on the questions posed by rules
35(1) and (3) only if, once the correct legal approach is applied, the answer
is plain.
49.
As to the first requirement, it will clearly be an important factor for
the Employment Judge, or upon review the Employment Tribunal, to take into
account that the Claimant knew Mr Hughes was saying the statement was not his.
But I do not think it is an end of the matter in itself. Much may depend on
whether, as the Claimant says, the matter was left on the basis that the
Respondent would justify the statement – the dating of which is, on any basis,
odd.
50.
In this case also rule 34(3)(e) may be in play. There is a strong
public interest in ensuring that tribunals are decided on the basis of true
witness statements, properly signed by the witnesses: rule 34(3)(e). A
tribunal which finds that evidence of real importance from a witness has been
tendered in the form of a signed witness statement when the statement was not
in fact signed by the witness might consider it just and equitable to review
the matter carefully to see whether its decision should stand.
51.
As to the second requirement, although the Employment Judge stated that
the evidence of Mr Hughes was “corroborative”, it is difficult to read the
reasons of the Tribunal in this way. On the question of resignation the
evidence of Mr Hughes appears to be more than merely corroborative.
52.
I turn to the argument that the Claimant should have provided a witness
statement from Mr Hughes. Again I do not think this is a decisive point on its
own. If the witness statement provided by Mr Hughes and the email dated 30
October were not really his documents then the Tribunal had no evidence from
him upon which to base conclusions. If the Claimant had been represented, he
would have been well advised to check what the evidence of Mr Hughes would be on
the substantive issues; but at this stage I do not think the absence of a
statement is conclusive.
53.
In the circumstances, the decision dated 2 November 2011 will be set
aside. The matter will be remitted to the Employment Tribunal so that the
application for a review can be considered afresh. I will give directions so
that some progress can be made, and so that the Employment Judge who considers
the matter will have more material available (as the Employment Judge in this
case had hoped he would have). Given the strength of the adverse finding made
by the Employment Judge, the matter will be remitted for consideration by a
Regional Employment Judge in accordance with rule 35(3).
