Appeal No. EAT/389/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 26 September 1994

	Before

	HIS HONOUR JUDGE J HICKS QC

	MR T S BATHO

	MR D G DAVIES

MR N D HERRIN	APPELLANT

SOMERSET CARE LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY
OR REPRESENTATION ON BEHALF OF THE APPELLANT

	JUDGE HICKS QC:  This is the Preliminary Hearing of an appeal by Mr Herrin who was dismissed by the employer Respondents, Somerset Care Ltd, from his post as a care assistant in one of their residential homes.

	Mr Herrin has not attended on the hearing today, but we have the assistance of a written summary of his proposed submissions from his solicitors and with the help of those submissions we can consider the grounds advanced in his Notice of Appeal.

	By way of background it is sufficient to say in the circumstances that it was a dismissal on disciplinary grounds arising out of an altercation with his manager in circumstances where he had requested week-end leave, was aware of the terms and conditions of his contract of employment under which the employer was entitled not to accede to such requests in the light of the need to provide full cover for the home, and had been informed that that request could not be granted.

	The Industrial Tribunal, having found against the employee on an issue of contribution  (the main decision as to unfair dismissal having gone in his favour), refused a review, and the first ground of appeal against that refusal of a review is that the tribunal erred in law or was perverse in misdirecting itself on the application of Rule 11 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, in that it refused to hear evidence from the Appellant of the grounds for review.

	The nature of an application to a tribunal to conduct a review is that it is an application that the tribunal review its decision on one of a number of grounds set out in Regulation 11(1) of the Rules of Procedure, one of which is that 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, and that was the ground on which the Appellant here was applying to the Tribunal.

	There is no express provision in Rule 11 that on such an application - not the review itself, but on such an application - the tribunal must actually hear either the new evidence which it is proposed to call or evidence in the sense of oral testimony from the Appellant of the grounds.  It is a matter for the tribunal how it conducts such an application and it may well be that some tribunals would hear evidence and that others would simply take, by way of statement or submission from the Applicant, the nature of the new evidence on which he would seek to rely, and we find that with this tribunal no error of law appears and no ground for advancing perversity in its approach to this point.  On the face of its quite full reasons for refusing the application for a review the tribunal was prepared to proceed on the assumption, for the purposes of the application, that there would be evidence of the kind which the Appellant explained to the tribunal, so in our view there is nothing in ground (a).  

	Ground (b) is really under the same head.  It reads:

		"The Industrial Tribunal erred in law or was perverse in that it concluded that there was no new evidence to support an application for review.  Having failed to hear any evidence from the Appellant there was no evidence to support that conclusion".

	For the reasons I have given that misapprehends the nature of this application.  The tribunal, as is clear from their Reasons, did consider the application on the basis the assumption in the Appellant's favour that there would be new evidence of the kind he had explained should a review proceed.

	The third ground, and in our view the principal ground for this part of the appeal, is that the Tribunal "misdirected itself on the application" of a particular case described in the Notice of Appeal as Welding Company Ltd  v  Burnham.  Its full title is Yorkshire Engineering and Welding Co Limited  v  Burnham [1973] 3 All ER 1176 and the tribunal in their Reasons for rejecting the application for review set out in full in paragraph 3 the test to be applied as stated in that case, and indeed in the same terms as are set out in the written submissions on behalf of the Appellant.  

	Having reminded themselves of that test the tribunal say that they have had regard to it in reaching their conclusion and there is really, in our view, absolutely no ground whatsoever for presuming that they did not do so or for advancing any ground that they had not done so.  They, on the face of their Reasons, plainly did take into account the elements referred to in that test and the nature of the exercise which had to be undergone in arriving at their decision, applying that test.  We therefore find nothing arguable in that ground of appeal.

	The fourth ground of appeal (d) takes a somewhat different point.  It reads as follows:

		"The Industrial Tribunal was perverse in that no reasonable tribunal could have relied upon the contradictory statements made in paragraphs 1 and 6 of the Decision in refusing the application for review.  In paragraph 1 the tribunal stated that it had taken into account in assessing the level of compensation, the Appellant's evidence that with the benefit of a favourable decision he would be hopeful of finding a new job quite soon.  In paragraph 6 it stated that the effect of a decision on an applicants job prospects should not be taken into account". 

	In order to deal with this ground it is necessary to explain a little more of the background to the whole application for review.  

	The Industrial Tribunal having in its original decision found in favour of the Applicant that he had been unfairly dismissed proceeded to deal with the award of compensation and one sentence in the paragraph dealing with that matter reads:

		"We also take into account the applicant's evidence that with the benefit of a favourable decision from this Tribunal he would be hopeful of finding a new job quite soon".

And they then proceed to assess the compensation and it is apparent from that sentence and from the calculation that the relevance of that point was to the length of the period over which they assessed a future loss.  They allowed four weeks for that purpose.  

	The Applicant's ground for seeking a review was in essence that the evidence that he had given before the original hearing as to finding a new job quite soon was related in particular to one specific job, that in fact shortly after the hearing he had lost the prospect of that job and therefore the whole basis of the assessment in that regard was falsified.  The tribunal had therefore clearly taken into account, for the purposes of arriving at the appropriate period, his own evidence that there were reasonable prospects of his obtaining a job.  The further fact that needs to be taken into account in order to understand this ground of appeal is that one of the reasons he had given in evidence for saying that those prospects were favourable was that he would be able to use a finding of the tribunal of unfair dismissal in his favour in explaining to prospective employers why he was out of work and by accepting that evidence of his and applying a period of four weeks the tribunal, it is said, and plainly this is right, was taking into account the help that he would get from a finding in his favour that he had been unfairly dismissed.  

	However, in their original decision the tribunal, among other matters, had canvassed his history of employment and mentioned the fact that he was often off sick and also the fact that he had a - perhaps minor - criminal record in respect of one conviction before his employment with the Respondents, which he disclosed on obtaining employment with them, and one further one for, I think, assault during his period of employment with them.  His complaint is that in dealing with that aspect the tribunal had damaged his job prospects because, although there was a finding in his favour that he was unfairly dismissed, he could not use that by producing their Reasons without also disclosing these unfavourable factors.

	The way in which the Tribunal deal with that on the application for review in paragraph 6 is as follows:

		"The other grounds put forward by the applicant's solicitors for a review have the common theme that the decision of the tribunal is detrimental to the applicant in its effect on his future job prospects because of the disclosures in the full decision of his sickness and criminal record.  We do not think that it would be appropriate that the possible effect of any decision by a tribunal on the applicant's future job prospects should be a factor to be taken into account in the assessment of compensation.  Further, we do not think that the effect of the decision that an applicant was unfairly dismissed should be so taken into account because of its disclosures as to his previous record.  Those are matters of record which an employee would normally have to disclose or explain to any prospective employer and the fact that they are recorded in a decision of an Industrial Tribunal cannot be treated as an adverse factor to be taken into account in assessing compensation".

	So the Appellants' complaint under this ground of appeal is that the Tribunal have taken into account the effect of their own decision in improving his job prospects while not taking into account, on the other hand, its effect in damaging them.  The reason why this arises on an application for review is of course that at the hearing the Applicant had been addressing his mind and his evidence to the tribunal solely on the question whether the finding overall would be in his favour of unfair dismissal and nobody presumably had given any consideration to the effect of detailed findings in the course of the tribunal's Reasons on such matters as sickness record and criminal record.

	The only possible shred of support for this ground of appeal in our view is the sentence in the middle of paragraph 6:

		"Further, we do not think that the effect of the decision that an applicant was unfairly dismissed should be so taken into account because of its disclosures as to his previous record",   

which might, taken in isolation, possibly seem to be inconsistent with their treatment of the effect of their finding of unfair dismissal, but in our view that is not a fair way of reading the tribunal's decision.  The substance of their disposal of this point is to be found in the last sentence of that paragraph in which they point out that those were matters of record which an employee would normally have to disclose or explain to any prospective employee, so that the fact that they are recorded in the decision cannot be treated as an adverse factor.  It seems to us to be a perfectly justifiable ground for their saying that this element was not a reason for review.  They are saying in effect that it is not an adverse factor on an Applicant's prospect that they have set out in their Reasons matters which, as they say, he would be under a duty to disclose anyway and which no doubt would be obtainable from other sources, whether or not they were shown on the face of the Reasons.  We do not therefore consider that that ground of appeal is arguable either.

	Finally, and again a totally distinct point, the grounds of appeal alleged that the tribunal misdirected itself and was perverse in the application of Rule 10(9) in that it purported to amend the decision to include an award of £150 for loss of statutory rights without the power to do so, and that that amendment amounted to a review and that no reasonable tribunal would have granted a review for that purpose without a full hearing of the other grounds of application for a review.  This matter is dealt with in paragraph 8 of the tribunal's Reasons for refusing the application for review.  It says:

		"The failure to make an award of statutory rights was an omission on the Chairman's part and would be corrected by the issue of a certificate of correction, the effect of which would be to award the sum of £150 under that head".

	The reference to a certificate of correction seems to be to Rule 10(9) of the procedural rules (as is assumed in the ground of appeal) which reads:

		"Clerical mistakes in the documents referred to in paragraphs (2) and (3) [that is the decision and the Reasons], or errors arising in those documents from an accidental slip or omission, may any time be corrected by the Chairman by certificate under his hand".

	It seems to us that it is apparent on the face of the tribunal's reasons for refusing the application for a review that that correction, the £150, was dealt with under Rule 10(9) and not under Rule 11 concerning a review, and that therefore this ground of appeal is also unarguably hopeless.  Rule 10(9) includes not only clerical mistakes but errors from an accidental slip or omission.  There was no dispute, as we read the tribunal's decision on the application for review, that this was an accidental omission.  It was part of what the Appellant was asking the tribunal to deal with, it was possible and right for the tribunal to deal with it under Rule 10(9) without having to have a full scale review of the matter and we consider that that ground also cannot be maintained.

	For these reasons we consider that none of the grounds of appeal raises an arguable point which would justify a full hearing of the appeal and it is therefore dismissed.