A/2000/3386
Neutral Citation Number: [2001] EWCA Civ 138 
IN THE COURT OF APPEAL (CIVIL DIVISION)	
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

                            		The Royal Courts of Justice
                            		The Strand
                            		London WC2A
 
	Friday 2 February 2001
Friday 2 February 2001
Before:

LORD JUSTICE MUMMERY
LORD JUSTICE RIX

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Between:

ALLEN J LAMBERT

Applicant/Respondent

and:
(1) DAVID LOWERY
(2) CHELSEA VILLAGE MANAGEMENT LIMITED

Respondents/Applicants
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Tel:  020 7404 1400
Official Shorthandwriters to the Court

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MR P GREEN (instructed by Mark Taylor & Company, Stamford Bridge, Fulham Road, London SW6) appeared on behalf of the Applicants

The Respondent did not appear and was not represented

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JUDGMENT
Friday 2 February 2001
1.	LORD JUSTICE MUMMERY: This is a renewed application for permission to appeal, the application on paper having been refused on 15 December 2000. On the renewed application, Mr Green of counsel appears on behalf of Chelsea Village Management Limited and Mr David Lowery to make oral submissions additional to those made in December in the very full skeleton argument.
2.	The respondent to this application, Mr Allen Lambert, was employed as a car park/security officer by Chelsea Village Management Limited from 1 September 1997 to 27 May 1998. The circumstances in which his employment was terminated led to his making an application, dated 21 August 1998, to the Employment Tribunal. The claim was for unfair dismissal, breach of contract and racial discrimination. On the claim, Mr Lambert named as his representative his step-sister, Miss McGillivary. 
3.	The claim was amended on 28 September 1998. There was a directions hearing on 4 December 1998, at which Mr Lambert's claim was consolidated with a similar claim by a fellow-employee, Mr Ali. The case was listed for hearing on 1 and 2 July 1999. 
4.	Neither Mr Lambert nor Miss McGillivary attended the hearing. The Tribunal exercised its power under rule 9(3) of the Rules of Procedure, which provides:
“If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3).”
5.	Mr Lambert's case was accordingly dismissed. Mr Ali's case was heard and he was awarded £22,000.
6.	On 18 July 1999 Mr Lambert wrote a letter setting out the grounds on which he sought a review of the Employment Tribunal's decision in his case. He said that he wanted a review of the decision:
“. . . owing to my representative, Miss A McGillivary not informing me of the date of the hearing. 
I was also not aware that she was no longer representing me until I received a visit from Mr Omar Ali during the evening of 4th July 1999, after the hearing, leaving me with no notice of proceedings. 
I believe my representative did not advice me or continue to represent me following the death of our Mother. We are both involved in a dispute over our Mother's Estate. This has left me unable to liaise with my sister, Miss McGillivary. I have tried on numerous occasions to obtain the date and information necessary from her, but she did not respond to my many requests. 
On the 8th July 1999, I received a package with a note advising me, Miss McGillivary would no longer be representing me. Included was a file containing all the information concerning my case, which I had not previously seen, due to this a decision was made in my absence.” 
7.	He concluded that he considered that in the interests of justice these were reasonable grounds for a review.
8.	The Employment Tribunal has power to review its own decisions, either on the application of a party or of its own motion. The grounds on which a review may be granted are set out in rule 11 of the Rules of Procedure. The grounds relevant to this case are “(1)(c) the decision was made in the absence of a party” and “(1)(e) the interests of justice require such a review”.
9.	A review hearing took place on 7 December 1999. Mr Lambert was represented by Mr Mitropoulos of counsel, and Mr Green represented Chelsea Village Management Ltd. The Tribunal unanimously decided that Mr Lambert's application for a review should be granted. It directed that the case should be relisted for hearing before a fresh tribunal for two days. 
10.	In the extended reasons for that decision, sent to the parties on 16 December 1999, the Tribunal set out the background to the dismissal of Mr Lambert's claim and the application by Mr Lambert for a review. At the hearing on 7 December Mr Lambert gave evidence and was cross‑examined. The Tribunal summarised the evidence which he gave in paragraphs 9 to 13 of the extended reasons. It summarised the submissions made by Mr Green in opposing the application, including his citations from the case of Morris v Griffiths [1997] ICR 153, which he has also cited in his skeleton argument to this court and on the hearing this morning. The Tribunal set out rule 11 and said:
“17 We rely on, as the basis of our decision, 11(1)(c) and 11(1)(e).
18 It is clear that the decision was made in the absence of the Applicant and we do not accept the submissions of Mr Mitropoulos that that alone would be sufficient for this Tribunal to order review.
19 Having heard the Applicant, though, and the manner in which he gave his evidence, we conclude that he did have a genuine reason for not knowing that the hearing was taking place on 1 and 2 July. He did admit that he thought it was going to take place some time in July but at that time he was experiencing these difficulties with his representative who happened to be his step-sister with whom he was having an argument over the tenancy of his property and he gave evidence that she was not speaking to him at that time. We conclude that the Applicant was not someone who would readily understand the procedures of the Tribunal. 
20. This Tribunal has heard the evidence relating to Mr Ali's case, who was a colleague of the Applicant, and Mr Ali had succeeded in his claim of race discrimination. We therefore conclude that it would be in the interests of justice to allow the Applicant's case to be heard by a full Tribunal other than the one that heard the case of Mr Ali.”
11.	That review has not taken place because the decision of the Employment Tribunal has been challenged on appeal, first to the Employment Appeal Tribunal and then to this court. 
12.	The Employment Appeal Tribunal heard the appeal at a preliminary hearing at which Mr Green appeared for the Chelsea Village Management Ltd. That hearing took place on 19 October 2000. The judgment of the Tribunal dismissing the appeal was given by His Honour Judge Reid QC. The purpose of the preliminary hearing was to determine whether the appeal by Chelsea Village Management against the decision to grant a review raised an arguable point of law. Such hearings are held because appeals to the Employment Appeal Tribunal can be brought only on questions of law. 
13.	The Employment Appeal Tribunal gave detailed reasons for finding that the appeal was unarguable: that there was no error of law on the face of the decision; that it could not properly be said that the decision reached by the Tribunal was perverse; and that there was nothing in the case which required a full hearing. In the reasoning leading up to that conclusion, the Appeal Tribunal referred to the important fact that evidence had been given to the Employment Tribunal by Mr Lambert on the reasons why he had been absent from the Employment Tribunal on the dates listed for hearing. That evidence had been tested in cross‑examination. In a sentence, the Appeal Tribunal said that the Employment Tribunal had been entitled to reach the conclusion expressed in the extended reasons.
14.	Chelsea Village Management did not accept that decision and have sought to appeal to this court. For that purpose they need permission. The appeal is confined to a point of law and they have to satisfy the Lord Justice to whom the application for permission is made that the appeal has a real prospect of success. Mr Green set out in his skeleton argument his detailed criticisms of the extended reasons of the Employment Tribunal. He said that it was not necessary for an applicant to understand a Tribunal's procedure in order to make a simple phone call to an Employment Tribunal to find out from the office the hearing date. As the Tribunal had found, and as Mr Lambert had accepted, Mr Lambert knew from his sister, who was representing him, that a hearing was to be held in July. Mr Green submitted that in those circumstances Mr Lambert had not discharged the burden of proof to show that he had a good and genuine reason for not attending the hearing on 1 and 2 July. He said that the Tribunal had reached an impermissible conclusion and had not given adequate and sufficient reasons justifying it. It had failed to make proper findings that on analysis could be supported. 
15.	He made another point regarding what has subsequently happened to the decision in favour of Mr Ali. The Employment Tribunal expressly referred to that in paragraph 20 of the extended reasons. Mr Green pointed out that the Ali decision had been successfully appealed by Chelsea Village Management to the Employment Appeal Tribunal, presided over by His Honour Judge Wilson on 1 November 2000. The Appeal Tribunal found that there was an error of law in the decision on Mr Ali's case. It directed that the issue of racial discrimination should be remitted to a differently constituted Employment Tribunal which, having concluded its deliberations and reached a conclusion on that matter, should consider the question of the award to be made for wrongful dismissal and on the grounds of racial discrimination, if that is what it found. 
16.	Mr Green submitted, in summary, that the Employment Tribunal in reviewing Mr Lambert's case had had regard to its own decision in Mr Ali's case. That decision was later found by the Appeal Tribunal to be flawed by a legal error, hence the successful appeal. The erroneous reasoning in the Employment Appeal Tribunal's decision in favour of Mr Ali was incorporated into its decision in favour of Mr Lambert and infected it, so that there was an error of law in the decision on review in favour of Mr Lambert.
17.	In brief, Mr Green says that Mr Lambert has no real prospect of success because the Tribunal was wrong to find that Mr Lambert had a good and genuine reason for failing to attend the hearing. It had made a perverse assessment of his evidence and had not acted in the interests of justice in granting a review by reference to a decision in another case, that of Mr Ali, which had been subsequently set aside.
18.	I have given full consideration to these points. But I remain of the view expressed, rather tersely, in writing when refusing permission on the paper application. That is: 
“The proposed appeal has no real prospect of success. There is no error of law in the decision of the Employment Tribunal made in the exercise of its discretion to review a decision under rule 11 of the 1993 Regulation.”
19.	It seems to me that, despite the criticisms made of the Employment Tribunal's decision, this is a hopeless appeal. First, the Employment Tribunal was exercising a wide discretion under rule 11. This court will interfere with the exercise of a discretion only where it is plainly wrong or can be demonstrated to be flawed by some error of principle or failure to understand the essential facts and law involved. Secondly, that discretion was exercised by reference to a finding of fact made by the Tribunal as the fact-finding body, having heard (which neither the Appeal Tribunal nor this court would do) the evidence given by Mr Lambert. It heard that evidence tested by cross-examination. 
20.	When I asked Mr Green, during the course of argument, whether he was questioning the Tribunal's assessment of the credibility of Mr Lambert, he candidly accepted that he was, but added that that was not the basis of his main argument. That goes back to the point already mentioned on the reasoning of the Tribunal. In my view, this appeal is seeking to reopen an essential finding of fact made by the Employment Tribunal as a necessary step in the exercise of its discretion. That finding of fact, putting it bluntly, was that they believed Mr Lambert. They believed that he gave his evidence honestly and that he honestly did not know of the hearing on 1 and 2 July. That was considered against the background of the unfortunate dispute between Mr Lambert and his sister, following their mother's death. 
21.	Mr Green's skeleton argument and his oral submissions adopt an over-critical examination and analysis of the way in which the Employment Tribunal stated its reasons. This is clearly not a perverse decision. In my judgment, Chelsea Village Management should have accepted it at the time it was given as an interlocutory decision made in the exercise of a discretion after hearing all the relevant evidence. The result of that decision was to allow Mr Lambert to have, which he has not had, a contested hearing of his case before deciding whether he or Chelsea Village Management are right on the merits of his complaint. 
22.	For all those reasons, I would refuse this application.
23.	LORD JUSTICE RIX: I agree. 
ORDER: Application refused