Appeal No.	 EAT/687/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 October 1997

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR A C BLYGHTON
MR L D COWAN

MR M JOSELYN	APPELLANT

(1) MRS H TAYLOR (2) MISS T WILLIAMS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR C HENNEY
(ELAAS)	

	MR JUSTICE MAURICE KAY:   This is a preliminary hearing of an appeal by Mr Mark Joselyn who seeks to appeal the decision of an Industrial Tribunal promulgated on 20th March 1997. 

	He was originally the respondent to an unfair dismissal application made by Mrs Taylor and Miss Williams as applicants. There was a hearing of the substantive unfair dismissal issue which resulted in a finding that the ladies had been unfairly dismissed. That hearing did not deal with remedies and the decision of the tribunal at the time indicated that the parties should seek to come to terms about remedies and that if no application to relist the matter for a remedies hearing was received by 2nd September 1996, all further claims would be dismissed. In the event, no application to relist the matter was received by 2nd September 1996. On 2nd October 1996 the tribunal dismissed the applications of Mrs Taylor and Miss Williams without a hearing. That decision to dismiss was then notified to the parties.

	We do not know much as to why the two ladies had omitted to apply for a relisting. It seems that they had written or caused to be written a letter to Mr Joselyn seeking to negotiate, but he had ignored that letter taking the view that he was unwilling to negotiate. Be that as it may, the position as of 2nd October 1996 was that the two ladies, having succeeded in obtaining a finding of unfair dismissal, had put themselves beyond remedy by failing to apply for a relisting for a remedies hearing.

	Thereafter, and when they had discovered what had occurred on 2nd October 1996, they applied for a review of the decision of 2nd October to dismiss their applications. In due course Mr Joselyn applied for review of the original decision and finding of unfair dismissal on the basis that he now had fresh evidence which he wished to place before the tribunal, which, if accepted, might tend to show that the two ladies and a witness called on their behalf had given untrue or inaccurate evidence to the tribunal at the substantive hearing.

	These two applications came before the tribunal on 27th February 1997. The Industrial Tribunal allowed the application of Mrs Taylor and Miss Williams for a review of the decision of 2nd October and allowed them to proceed to a remedies hearing thereafter. That took place on the same occasion and in the event Mrs Taylor was awarded compensation of £740 and Miss Williams of £907 subject to recoupment.

	Mr Joselyn now seeks to appeal to this Employment Appeal Tribunal and raises issues in relation both to the decision to allow the ladies to proceed to the remedies hearing and the decision refusing him a review of the original decision with the benefit of fresh evidence.

	We deal first and briefly with his appeal in so far as it relates to the decision of 2nd October 1996, whereby the Industrial Tribunal which decision was reviewed enabling the ladies to proceed.

	Mr Henney has drawn our attention to the relevant passages in the decision of the Industrial Tribunal. There is a finding in paragraph 7 in these terms:

“7.  We were unanimous in allowing the applicant’s application for review. We were satisfied that it was in the interests of justice to allow the review.”

It is apparent from that that the tribunal was agreeing to review the decision of 2nd October by reference to Rule 11(1)(e) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 Schedule 1. The complaint sought to be made on behalf of Mr Joselyn is that there was no or no sufficient material to bring the case within Rule 11(1)(e). In this regard Mr Henney has drawn our attention to the case of Trimble v Supertravel Limited and in particular to the passage in the judgment at page 453. In the course of his submissions he has suggested that that passage coupled with the commentary in the present edition of Harvey on Industrial Relations and Employment Law, tends to divide interests of justice cases under Rule 11(1)(e) into two groups of which he suggests this is neither and, he further submits that there simply was not the material upon which the tribunal could or should have found it to be in the interests of justice to allow the ladies their review.

	Secondly, he submits that the decision was defective in failing to identify what factors it had taken into account in granting the application for a review and that there was a failure to give reasons for its decision in that regard. We do not think that it is right to seek to place Rule 11(1)(e) into any kind of straight jacket or to suggest that there are only two types of case to which it can apply. We are also cognisant of the fact that most of the authorities, even when dealing with interlocutory appeals, do arise out of applications for a review following a substantive hearing rather than following the making of a decision of the kind that was made on 2nd October 1996 as a result of a failure to comply with what was in effect an order. 

	After considerable hesitation, we have nevertheless come to the conclusion that it would not be right to shut Mr Joselyn out from pursuing his appeal on this part of the case and we shall give him leave to proceed to the full court to argue the grounds that are contained in the hand-written amendments to the Notice of Appeal that have been put forward by Mr Henney. We come to that conclusion marginally and with no enthusiasm, but in the circumstances, it seems to us to be appropriate that there should be a final hearing on this issue in the circumstances of this case.

	This second part of the appeal which Mr Joselyn seeks to pursue, relates to the refusal of the Industrial Tribunal to allow him a review in the light of what has been called ‘fresh evidence’. Related to that he also seeks to appeal on the basis of an allegation of bias on the part of the Industrial Tribunal or at least the Chairman. So far as the so-called ‘fresh evidence’ is concerned, we are not persuaded that there is anything arguable on this ground. The history of the matter is this. In their Originating Applications both applicants described circumstances in which they had begun to work in the Public House in Colchester, which is the venue for this dispute, in 1994; that at that time they were not given any contract or statement of terms by their employer; that the business was later taken over by a Mr Stott; that Mr Stott did provide them with a document dated 1st October 1995 and that they continued to be employed under Mr Stott until he transferred the business to Mr Joselyn in or about January 1996. It is apparent from that that from the outset Mr Joselyn was on notice that it was to be contended that Mr Stott had provided a document dated 1st August 1995.

	The factual dispute in the case included to a significant extent a consideration as to whether or not that document had in fact arisen at that time and been communicated at that time. The ladies and Mr Stott gave evidence that it had. Mr Joselyn, although he was not directly involved at the time, disputed that. Before the substantive hearing he had in his possession a letter that we have seen dated 5th March 1996 from Mr Veale, the Regional Manager of Pubmaster Limited, which indicated that as far as Mr Veale was concerned Miss Williams and Mrs Taylor did not have a contract with Mr Stott. 

	The fresh evidence which Mr Joselyn wished to advance was partly the evidence of Mr Veale, and also the evidence of a Mr Butcher. His complaint is that he was given short shrift by the tribunal when he sought to explain how and why these two witnesses should be given the chance to testify and that the original decision should be reviewed. In addition to what Mr Joselyn has had to say about the matter in his Notice of Appeal and in an affidavit dated 19th May 1997, we have observed and perused what the Industrial Tribunal Chairman has had to say in a letter dated 5th June 1997. The position clearly is this: whatever light Mr Veale could have thrown on the matter was available to Mr Joselyn at the time of the substantive hearing as is apparent from the letter dated 5th March 1996. In any event, it is difficult to see how Mr Veale could give conclusive evidence on the subject since the ladies had left the employment of his company in 1994 and his statement or letter merely indicates something “as far as I am aware”. He seems to have been, at best, a vague and peripheral potential witness, and at worst, possibly a hearsay witness. Be that as it may, his evidence was available at the time of the substantive hearing but was not called by Mr Joselyn and we have seen and heard no satisfactory explanation as to why that was so. 

	So far as Mr Butcher is concerned. There is a dispute between Mr Joselyn and the Chairman of the tribunal as to whether Mr Butcher was physically present on the occasion of the hearing on 27th February 1997, but that seems to us to be neither here or there. The Industrial Tribunal Chairman in his letter says that Mr Joselyn was unable to explain exactly what the new evidence was to be from Mr Butcher. He observes that no written statement was made available. Since then Mr Joselyn has had the advantage of solicitors who assisted him with his affidavit and the paper work which preceded this appeal, and, we have to say that even now we are at a loss to see precisely what evidence it is that Mr Butcher could have given which would have made any difference to this case, nor can we see if there were such evidence, why it was not called at the time as Mr Joselyn had known of the issue about the written terms and conditions from the outset. 	It follows from all that, that in our judgment, he has no arguable ground of appeal relating to the decision in so far as it refused him a review on the basis of his having fresh evidence. 

	That brings us to his final ground of appeal. It is in simple terms an allegation of bias against the tribunal, or at least the Chairman. Such allegations are made with regrettable frequency. They are always carefully considered by this appeal tribunal when they are made and the allegation has been carefully considered in this case. Suffice it to say, that what we have seen on paper from Mr Joselyn and adumbrated by Mr Henney on his behalf, does not come any where near establishing an arguable case of bias, and so we shall not permit him to argue that at a full hearing.

	In conclusion therefore, the case will go to a full hearing simply in relation to the matters upon which amendment was sought at the outset of today’s hearing. It seems to us that it is necessary to bespeak the Chairman’s Notes of Evidence of the hearing, in so far as they relate to the application of Mrs Taylor and Miss Williams for a review of the decision of 2nd October 1996.