United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant (on 15 January 2013 only)	MR ALEX MODGILL (of Counsel) Instructed by: Stachiw Bashir Green Solicitors The Old Bank Building 656 Great Horton Road Bradford BD7 4AA
For the Respondent (on 15 January 2013 only)	MR JONATHAN GIDNEY (of Counsel) Instructed by: Messrs Freeth Cartwright LLP Solicitors One Colton Square Leicester LE1 1QH


 


SUMMARY

PRACTICE AND PROCEDURE

Review

New evidence on appeal

At a remedies hearing the Respondent argued that the Claimant would have been made redundant shortly if he had not been unfairly dismissed. Oral evidence as to their redundancy policy was given. The hearing was not completed and was adjourned so that the parties could provide written closing submissions before the Tribunal reached a decision.

The Claimant asked for a copy of the Respondent's redundancy policy document. The Respondent had not disclosed it and did not produce it at the hearing. They declined to produce it after the hearing but before the Tribunal reached a decision. The Claimant subsequently got hold of it by another route; it differed from the oral evidence given about it by the Respondent to a material degree. The Claimant sought but was refused a review. He appealed against the substantive award of compensation and against the refusal of a review.

The EAT heard oral evidence about what had passed between the parties as to the redundancy document and as to the Respondent's withholding of it. At the end of that evidence there was no time to proceed to argument and the appeal had to be adjourned. An indication was given that the EAT might regard the Claimant's evidence as preferable.

Before the resumption of the appeal, the parties agreed that the first appeal should be allowed and the remedies issues remitted to a new tribunal. The EAT had, however, to resume the hearing, albeit only to give a judgment. Two points of practical importance are set out in the judgment:-

1. The parties to an appeal cannot of themselves agree that an appeal shall be allowed; the judgment of a court or tribunal can only be overturned by the judgment of an appellate court or tribunal.
2. Issues relating to new evidence, such as the redundancy document in this case, should be addressed by the ET's review process and should not need to be dealt with by the EAT.

HIS HONOUR JEFFREY BURKE QC

Introduction

3. There are two appeals before the Employment Appeal Tribunal. The first is the appeal of Mr Sakharkar, the Claimant before the Employment Tribunal, against the assessment of compensation for unfair dismissal made by the Employment Tribunal, presided over by Regional Employment Judge Lee and set out in a judgment sent to the parties on 18 October 2011. The second is an appeal against the Employment Judge's rejection of the Claimant's second application for a review of that remedies decision in a letter dated 1 March 2012. On 18 June 2012 HHJ David Richardson, at a hearing under rule 3(10) of the Employment Appeal Tribunal Rules, permitted both appeals to go through to a full hearing. He directed that they be heard together, as they have been before us. He made other directions, to which it is unnecessary to refer. We heard argument on 15 January 2013, but, for reasons which we will explain, the hearing was not completed on that day, and it was adjourned part -heard. The Claimant was represented before us on that day by Mr Modgill of counsel; the Respondents, Northern Foods Grocery Group Ltd t/a Fox's Biscuits, were represented by Mr Gidney of counsel. We are grateful to both of them for the contribution that they made.

Background

4. Because, as will become clear, we are going to allow the appeal against the remedies judgment and direct its remission to a new Tribunal, it is necessary for us to explain the reasons for that decision in the unusual circumstances of this case in a little detail. The history which has led to the bringing of these two appeals is not straightforward. The Claimant was employed by the Respondent from July 1991 to November 2008 as a machine operator. On 14 November 2008 he was dismissed, after a hearing, at the fourth stage of the Respondent's four stage absence review procedure. Only at the fourth stage did the procedure provide for the sanction of dismissal. The Claimant suffers from migraine, which caused him to be absent from work from time to time, and as a result between May 2006 and May 2008 he went through the first three stages of that procedure and was given a warning of potential dismissal if absence continued. There were further absences, the fourth stage was invoked, and the Claimant was dismissed; his internal appeal was unsuccessful.
5. He then claimed to the Employment Tribunal that he had been unfairly dismissed. On 11 December 2009 the Employment Tribunal, Employment Judge Lee presiding, as she has done throughout, heard his claim and concluded that it failed. During the hearing it emerged that, at the third stage of the absence procedure, the Respondent had taken into account 56 days of absence through stress and depression, although they had earlier promised the Claimant that those days would not be taken into account as sickness-absence. Neither the Claimant nor the Respondent noticed this error at the third or at the fourth stage; but it was noticed at the Employment Tribunal hearing. The Tribunal concluded that the Respondent would not have dismissed at the fourth stage had they known of the error; but they also concluded that the Respondent had dismissed for the potentially permissible reason of some other substantial reason and that, although the Respondent had a mistaken belief that the history was one that justified dismissal at the fourth stage, the Respondent had not been unreasonable in making that error and reasonably and genuinely believed that the Claimant had accumulated absence which justified dismissal and the dismissal was therefore fair.
6. The Tribunal recognised that their decision was to some extent controversial. They said that, if they had found that the error rendered the decision to dismiss unfair, they would have found that the Claimant had been unfairly dismissed. They also said that there was a substantial probability that the Claimant, if not dismissed, would thereafter have triggered the various stages of the dismissal procedure because of migraine attacks in the future. They found that the Claimant might, had they been assessing compensation, have been found to have contributed to his dismissal by 10 per cent.
7. The Claimant appealed against that decision to the Employment Appeal Tribunal and was successful. The Employment Appeal Tribunal, HHJ David Richardson presiding, held in a judgment handed down on 8 March 2011 in case number UKEAT/0442/10, that the Employment Tribunal had left out of account the fact that the Respondent had a large HR or personnel department which could and should have ensured that the mistake at the third stage was not made. A finding of unfair dismissal was substituted, and the case was remitted to the same Employment Tribunal to decide on remedies. The EAT expressed the hope that the parties would reach agreement as to compensation, but that hope was not fulfilled.
8. Before the remedies hearing, there was a case management discussion on 5 May before Employment Judge Lee (by now Regional Employment Judge Lee) sitting alone. Much of her judgment on that occasion related to an application by the Claimant to add a claim of race discrimination, which was not successful. No doubt that application took up most of the time spent at the hearing. There is a dispute between the Claimant, who was representing himself on that occasion, and Mr Atkinson, the Respondent's in-house solicitor, who appeared for them on that occasion, about what was said between them at that hearing on the subject of the potential redundancy of the Claimant had he not been dismissed. We need not, in the circumstances which we will describe in a moment, go into that dispute.
9. The substantive remedies hearing took place on 12 July 2011. It did not finish on that day. The Employment Judge's notes, helpfully sent by her at HHJ Richardson's request, show that the Respondent's witness, Ms McCormack, did not start her evidence until 3.43pm. It was her evidence that the redundancy policy of the Respondent was such that the Claimant would have been at a high risk of redundancy in 2010 if he had not been dismissed when he had been. She did not produce a written redundancy policy. When her evidence was finished, there was no time for the hearing to be completed by submissions. The Employment Tribunal, no doubt in consultation with the Claimant and Mr Patterson, who on this occasion was representing the Respondent, set out the issues which they had to decide and directed the parties to exchange written submissions on those issues under a timetable, before the Tribunal met to reach a reserved decision on 5 September 2011.
10. There was a dispute between the parties as to what, if anything, was said about the Respondent's redundancy policy in terms of a written document at that hearing. We need to say only that the Claimant asserts that he asked the Respondent at the end of that hearing in the light of the facts that submissions were not completed, the hearing was not completed and he had not seen any written redundancy policy, to produce that policy. He says that they said they did not have it and that the Tribunal suggested he should write to the Respondent to obtain a copy. That is not disputed; but, in any event, whatever was or was not said, on 13 July, the next day, the Claimant wrote to Mr Atkinson of the Respondent asking a host of questions about the facts underlying the Respondent's assertion that he probably would have been made redundant by 2010. The first of those questions was a very simple one. It was, "Can you please send me the exact matrix of markings that were used for the compulsory redundancy?"
11. That request produced from Mr Atkinson an answer on 14 July that he was out of the office and would give the matter some thought in the following week. There was no further response, despite reminders, until 25 July, when Mr Atkinson said that there was no order that required the Respondent to supply any further information, that the Tribunal had concluded hearing evidence and that it was counter-productive for the Claimant to introduce further evidence at that stage that the Respondent would not have the opportunity to test.
12. The Tribunal proceeded to deliberate on 5 September; and their judgment was sent to the parties on 18 October. They set out the issues which they had identified at the hearing; and they decided against reinstatement and reengagement. As to compensation, they said at paragraph 3.1:

"[…] we accept the Respondent's evidence and contention that there has already been one redundancy exercise and there is about to be a second one."

and at paragraph 5.3 they said that they accepted Mrs McCormack's evidence and that the Claimant, on the scoring system described by Mrs McCormack, would inevitably have been selected for redundancy some 18 months after the actual dismissal.

13. Next we come to the event which has led to these two appeals. In February 2012 the Claimant managed to obtain – not from the Respondent but by a different route – a copy of the Respondent's redundancy policy, or matrix, which he had asked for in July 2011. He believed that it demonstrated that the Respondent's case as to his future vulnerability to redundancy was obviously wrong. The document itself plainly supports that view. Therefore on 22 February he wrote to the Tribunal, seeking a review on the grounds that the document represented new evidence and that it was in the interests of justice that there should be a review. He sent a copy of the document to the Tribunal. His application was rejected in a letter which said:

"This is the second request to Review. The Tribunal had to do its best on the information available to assess the prospect of the Claimant staying in work. The prospect of the Claimant being made redundant at a later stage was only one of the factors taken into account."

14. There had been an earlier application for a review on different grounds; but the second application was of course the first based on the document that the Claimant had only just managed to get hold of.
15. By this time the Claimant had already, in November 2011, lodged a Notice of Appeal against the Tribunal's assessment of compensation. That appeal was rejected at the sift stage of the Employment Appeal Tribunal's procedures; but when he obtained the redundancy document and his application for review was rejected, he took three steps: firstly, he obtained representation; secondly, he put in amended grounds to support the first appeal; and thirdly, he put in a second appeal against the refusal of a review.
16. On 18 June 2012 HHJ Richardson allowed both appeals to go through to a full hearing. He ordered that the appeal should go through on specific grounds, which he identified, and that the application to adduce new evidence – the redundancy document, of course – should be dealt with at the full hearing.
17. As we have already said, we embarked upon that hearing on 15 January. We heard evidence as to what had happened in relation to the redundancy document at the remedies hearing and thereafter. We heard that evidence because it became clear, after hearing Mr Modgill's opening, that it was crucial that we should determine the history of what had happened in order to decide the issues that arose in the appeal.
18. It is not now necessary for us to go through in detail the oral evidence put before us. At the end of the evidence the day was nearly completed, and it was obvious that the appeal was going to go part-heard. In order to help the parties, we gave an informal indication that, subject to any further evidence – and it did not seem that there was any – and subject to argument, we might well prefer the evidence which the Claimant had given and that the parties might like to consider whether the resumption of the appeal could be avoided (or we used words to that effect). We said that because, as it seemed to us, the evidence of the Claimant was indeed preferable. Mr Atkinson's explanation of the Respondent's refusal to provide the document when the Employment Judge had advised Mr Sakharkar to ask for it, and of their decision to hold onto it when it was plainly relevant to the issues which the Tribunal had to decide, was much closer to having been disingenuous and obstructive than it was to being justified or admirable.
19. Last week the Employment Appeal Tribunal was informed that the parties had agreed that the appeal against the remedies decision should be allowed and that the issue of remedies should be remitted to a new Employment Tribunal. We welcome the realistic approach which that agreement embodies. However, when that proposal was put before the EAT, it was felt necessary to draw to the parties' attention the principle that an appeal cannot be allowed by consent; the allowing of an appeal involves the overturning, in part or in whole, of a decision of the court or Tribunal from which the appeal has been brought; and a judicial decision cannot be set aside because the parties agree that that should happen. It can only be set aside by a judgment of the appropriate appellate court or Tribunal. That principle applies to the Employment Tribunal and the Employment Appeal Tribunal as it does to the County Court or High Court and the Court of Appeal. Of course, if the parties settle on agreed terms and, as a result, an appeal is to be withdrawn or stayed, the Employment Appeal Tribunal would not seek to stand in the way; but the position is slightly more technical where what is proposed is that an appeal should be allowed and there should be remission to the Tribunal. In such circumstances, it is necessary for the court, out of courtesy to the Employment Tribunal from whom the appeal has, or the appeals have, been brought, to give some explanation by way of judgment of the reasons why the appeal is being allowed.
20. When this was pointed out to the parties, they agreed that the way forward was for the Respondent no longer to present any arguments against the allowing of the appeal against the remedies judgment of the Tribunal or against the remission of the remedies issues to a fresh Tribunal. It was also agreed, at the suggestion of the Employment Appeal Tribunal, that the review appeal would become redundant and should be dealt with by its being dismissed or stayed.
21. There is a further complication. Part of the remedies appeal is an attack on the Employment Tribunal's approach to the calculation of pension loss, as to which, to the best of our recollection, we had not heard any argument by the time we adjourned on 15 January. What has now been agreed is that the EAT need not consider that matter any further; for it can be argued out anew before the fresh Tribunal, to which remedies are going to be remitted.

Disposal

22. In the light of that level of agreement, we have permitted the parties to save the cost of attending or being represented here today. We are wholly satisfied, firstly, that the Respondent's redundancy document which the Respondent did not disclose in the course of the remedies hearing process and which they should have disclosed even before it was asked for but certainly when it was asked for, undermines the basis on which the Tribunal made their decision that the Claimant would have been dismissed for redundancy within 18 months of the date of his actual dismissal. In saying that, we are not saying that examination of that document necessarily would produce a different result; that will be for the Employment Tribunal to which remedies are remitted to consider; but that the document undermines the reasoning which led to the Tribunal's conclusion is clear; it only needs to be read for it to be seen that it gives a different picture of the Respondent's redundancy policy from that which was put before the Employment Tribunal by Ms McCormack. We hope that she, when she gave oral evidence, did not know about the document. Had the Tribunal seen that written policy, their decision may have been different; the extent of any such difference is not for us to decide. The document was not available at the hearing, although it should have been; it was only found later. It is a document which was relevant and probably would and certainly could have had an important bearing on the order.
23. Therefore, we conclude that the application for new evidence before us succeeds, and, on the basis of that document, the appeal against the remedies decision must be allowed, with the consequent remission to which we have referred. We are content to accept the parties' suggestion that the pension loss calculation should be determined by the newly constituted Employment Tribunal. The second appeal, the review appeal, is now unnecessary
24. We need to say that new evidence issues should be dealt with through the Tribunal's review procedure and should not, save in rare cases, come before the Employment Appeal Tribunal; it is unfortunate that the Employment Judge, no doubt under great pressure of work as all Employment Judges are, did not allow the application for a review so as to enable the Employment Tribunal to see the new evidence and decide whether it undermined their original decision, as potentially it plainly did. But now, having regard to the course that is being taken in relation to the appeal against the remedies decision itself, there is no point in the review appeal going any further, and it can, and should, be dismissed.