Appeal No.	 EAT/901/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 March 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR D A C LAMBERT
MR A E R MANNERS

MR D BARTHOLOMEW	APPELLANT

THE LONDON BOROUGH OF HACKNEY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR CLIVE LEWIS
(of Counsel)
The Borough Solicitor
London Borough of Hackney
Town Hall
Mare Street
London
E8 1EA	

	MR JUSTICE MORISON (PRESIDENT):      This is an appeal by Mr Bartholomew against a refusal by an Industrial Tribunal to accede to his application for a review of their unanimous decision given on 15 December 1994.  By that decision the Industrial Tribunal held that Mr Bartholomew’s complaints of race discrimination brought against his former employers, the London Borough of Hackney, had been compromised by reason of an agreement signed on his behalf by a Mr Beavis, a Branch Officer of UNISON, a trade union of which Mr Bartholomew was a member, and signed by a Solicitor on the Council’s behalf.

	Mr Bartholomew’s case before the Industrial Tribunal was that Mr Beavis had no actual or ostensible authority to make the agreement on his behalf, by which accordingly he was not bound.

	The compromise agreement was allegedly made on 13 March 1994.  The Industrial Tribunal declined to adjudicate on the question “whether there was actual authority” contenting themselves with their finding that Mr Beavis had ostensible authority to act on Mr Bartholomew’s behalf and, accordingly, when he signed the agreement he was acting as an authorised agent for the purposes of effecting a settlement.

	The hearing before the Industrial Tribunal lasted two days, on 23 and 24 November 1994.  Prior to that hearing there had been correspondence between the parties.  Mr Bartholomew was appearing in person, but it should be said that he is unusually capable of representing his own interests.  

	On 17 October 1994 he raised a question of the London Borough of Hackney in this way:

“Could the applicant please be advised whether the post held by Mr Ivan Beavis was subject of a recent upgrading or has Mr Beavis recently received a promotion in or around the period of the termination of his, the applicant’s, employment, the 28.2.1994, or since.”

	That letter provoked the following response from the London Borough of Hackney:

“May I please know the relevance of these questions to the issue which is at present before the Tribunal?”.

	Not content with that answer, on 5 November 1994, Mr Bartholomew wrote twice to the London Borough of Hackney.  He made it plain in the first of those two letters that:

1.  In order to succeed in its claim, that a valid COT3 form was signed on behalf of the applicant which binds him and prevents him continuing with a previous IT claim and launching a fresh one, the respondent will have to establish, inter alia, that they acted during the episode leading up to the termination of the applicant employment without mala fides.
2.  Therefore,
1.  Mr Ivan Beavis:  Whether Mr Beavis received promotion from the respondent during or shortly after the episode during which he acted for the applicant would be a relevant factor to be brought to the attention of the Tribunal.  

	In the second of the two letters of that date, he wrote to Hackney saying:

“1.  I am surprised that you have been unable to find the memo from the Chief Executive of the London Borough of Hackney, wherein he states that he finds me ‘litigious’, as I believe that this document is in the possession of Mr Sam Yeboah.  ...”

	And at paragraph 5 it says:

“5.  You will recall that I had, in a previous letter, requested further particulars regarding Mr Beavis’ promotion, whether reports had gone before Council committee regarding my alleged financial irregularities and whether complaints had been made to the police regarding my alleged criminal actions.  Can I please be supplied with this information or have an indication as to whether you will refuse to supply these details.”

	The response from the London Borough of Hackney on 17 November 1994, just under a week before the Tribunal was due to convene, wrote this:

“With regard to the further particulars you requested in your letter of 17th October, I have discussed the contents of your most recent letter with Counsel and we are not persuaded at this stage by the purported relevance of these questions to the matters at issue in the proceedings.  
...  At this stage, it is likely that we will call Gaby Charing [ the Legal Officer who signed the agreement] and Sam Yeboah.  It is also likely that the Council may call Ivan Beavis.  Any question as to the scope and admissibility of his evidence can be dealt with by the Tribunal at the hearing.  It may be that we would also want to refer to correspondence between Ivan Beavis and yourself.  Again, any question of admissibility can be dealt with at the hearing.”

	At the hearing Mr Bartholomew did not raise the issue which had been canvassed in this correspondence before the Industrial Tribunal, or ask for discovery or further particulars.

	In August 1995 Mr Bartholmew’s firm conviction was that Mr Beavis and the Council had been negotiating some kind of corrupt arrangement to induce the former to represent Mr Bartholomew’s interests less forcefully than he otherwise would have done at the disciplinary procedure instigated by the Council and thereafter.

	The basis of his application of 5 August 1995 for a review was made under paragraph 11 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, Schedule 1, which reads:

“11.- (1)  Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that -
(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 or foreseen at the time of the hearing; or
(e)  the interests of justice require such a review.”

	Mr Bartholomew, the Industrial Tribunal having refused his application for a review, sought to appeal against that refusal and the matter came on before the President of the Employment Appeal Tribunal, my distinguished predecessor, Mummery J.  He said this:

“That leaves the second appeal.  The Notice of Appeal, served on 29 August 1995, seeks to appeal against the refusal of the Chairman of the original Industrial Tribunal to grant a review of the Industrial Tribunal decision.  The decision which he wishes to appeal against was contained in a letter of 4 August 1995.  A letter dated 4 August 1995 sent by the Industrial Tribunal at London (North) to Mr Bartholomew says this:
‘Mrs B A Calvert QC has asked me to thank you for your letter of 22 July and to explain that as she refused your application for a Review by letter dated 15 February 1995 she has no power under the rules to Review that decision.
Your only remedy would be to appeal her decision to refuse your application to the Employment Appeal Tribunals.
Mrs Calvert suggests you seek legal advice.’
The earlier letter of 15 February, mentioned in the letter of 4 August, says that Mr Bartholomew’s application for a review under Rule 11 of the Industrial Tribunal Rules was refused, because there were no grounds which fell within Rule 11 and the application had no reasonable prospect of success.  Mr Bartholomew is not attempting to appeal against that decision refusing a review.  He accepts that, at the time when he made that application, he did not have the new evidence which he put before the Tribunal in his letter of 11 July 1995.  His point is this:  that the Industrial Chairman has misunderstood the position in the letter of 4 August.  It was not correct, he says, simply to refuse his application on the grounds that it was a renewal of an application already refused.  He was making a new application based on new evidence, summarised in his letter of 11 August 1995.  He submits that that application for a review does come within Regulation 11 of the Industrial Tribunal Rules, in particular 11(1)(d) which provides that a review of a decision may be made on the grounds that: [and my learned predecessor set out the provisions which we have already referred to] ... 
The only appeal which he is now seeking to bring is against that decision refusing the review on 4 August 1995.  His Notice of Appeal, served on 29 August 1995, was in time and he does not need an extension.
I accept that argument.  In view of what Mr Bartholomew accepts about the 1994 decision, the Registrar was right in refusing his application for an extension.  I therefore dismiss his appeal against the Registrar’s order.  Insofar as he is seeking to appeal against the refusal of a review, he does not need an extension.  That application was made within the forty-two days prescribed by the rules.  I should add that there is a serious dispute on whether Mr Bartholomew has any valid legal grounds for appealing against the refusal of the review.”

	This morning the London Borough of Hackney disclosed two letters to Mr Bartholomew which have been drawn to our attention.  This is correspondence passing between Mr Beavis, on the one hand, and the Council on the other.  The letter from Mr Beavis, written on UNISON writing paper, is dated 15 September 1993 and I quote the relevant parts of it:

“As you know the policy in Resources Committee agreed in January 1983 to release me full-time in order that I could undertake duties on behalf of NALGO.  In those halcyon days the agreement between NALGO and the leader of the Council provided only that upon completion of my tour of duty I would return to a substantive PO2 post.  Consequently, the position I had occupied was advertised and filled substantively.”

	I leave out the next two paragraphs.

“I learnt of a reorganisation in 1989/90 which deleted all former posts of Assistant Director Housing Manager and assimilated all outstanding employees in such jobs into posts of Neighbourhood Managers at grade PO4.”

	I leave out the remainder of that paragraph and the next paragraph and pick it up again at the penultimate paragraph of the letter.

“Ideally, I believe that I should be assimilated onto grade PO4 with effect from the date I would have been so had I not been released for trade union duties.  There is, I believe, precedent to show that re-gradings or revised payments beyond annual pay and incremental rises have been made to employees in my position.  I cite Mr Fenes who has been re-graded whilst on secondment and I believe Mr Chalkley, from the Job Evaluation exercise.  Apart from the ideal of course, I am prepared to discuss the issue as it must be clear from 11 years at the same incremental point that I am not particularly greedy.  However, I am mindful to insist that I am placed at grade PO4 immediately in preparation for whatsoever made before me should I retire from the post of Branch Secretary.”

	The response is dated 9 August 1994 and reads, so far as is relevant:

“Your Current Substantive Grade
I refer to our recent discussion regarding this matter relating to your original claim on 15 September 1993 that you should be re-graded to grade PO4.  I confirm that your claim has been seriously considered and it is accepted that had you not been on full-time trade union duties you would by now have been appointed to a post at District Housing Manager level.  I regret the amount of time it has taken to deal with your claim, but as you are aware it proved quite difficult to track down the relevant documentation to support your claim.  The equivalent posts are now graded PO4 and I therefore confirm that your grade will be amended to PO4 in view of the fact that you originally made the claim on 15 September 1993, that will be the implementation date for your re-grading.”

	I need read no more of that letter.

	In his submissions to us the Appellant first drew attention to the general statement of principle of law which he says governs this case.  That statement of principle is contained in Halsbury’s Laws, volume 1(2) Agency at page 106 paragraph 151:

“(vii)                                             Corruption of Agent
151.  Principal’s remedies.  Where a principal has entered into any contract either through the mediation of an agent ... and it afterwards appears that the other contracting party had made to the agent a payment or promise of payment in the nature of a bribe, the principal has two courses open to him.  He may repudiate the contract and have it set aside, or he may affirm it and obtain such relief as the court may think right to give him.
There is an irrebuttable presumption that the payment was made with the intention that the agent should be influenced by it; consequently it is immaterial to inquire whether or not the agent was in fact influenced by such payment or promise of payment to disregard his duty towards his principal.”

	In order to determine whether a payment is in the nature of a bribe Mr Bartholomew drew our attention to a dictum of Romer LJ cited in the case of Taylor v Walker & Others which is reported in the LL.List LR [1958] volume 1, commencing at page 490.  At page 510 Havers J cited the judgment from Romer LJ and I read:

“The courts of law of this country have always strongly condemned and when they could, punish the bribing of agents and have taken a strong view as to what constitutes a bribe.  I believe the mercantile community as a whole appreciate and approve of the court’s views on the subject, but some persons undoubtedly hold lacks of views, not that these persons like the ugly word of ‘bribe’ or would excuse the giving of a bribe if that word be used, but they differ from the courts in their view as to what constitutes a bribe.  It may therefore be well to point out what is a bribe in the eyes of the law?  Without attempting an exhaustive definition I may say that the following is one statement of what constitutes a bribe.  If a gift be made to a confidential agent with the view of inducing the agent to act in favour of the donor in relation to transactions between the donor and the agent’s principal and that gift is secret, as between the donor and the agent, that is to say without the knowledge and consent of the principal, then the gift is a bribe in the view of the law.”

	It was Mr Bartholomew’s contention before us that it would be correct to characterise the relationship between Mr Beavis and the London Borough of Hackney as one in which the agent is in the pay of the Respondents, and was in the course of negotiating for himself an increase in his pay.  Accordingly, he says, this falls within the definition of a bribe in the words of Romer LJ.  He makes the point that, if there had been nothing to fear, the Council would surely have been prepared to have disclosed the documents which were only disclosed this morning.  Their failure to respond to his requests for information was an indication that all was not above board and secondly, they should have disclosed these documents to avoid any perception of bribery, given the relationship between the Branch Officer and themselves, on the one hand, and the Branch Officer and Mr Bartholomew on the other.

	He accepts that the approach that this court should take to the exercise of its judgment in a case where there is a review of a Tribunal’s decision is accurately set out in the judgment of Phillips J sitting in the Queens Bench Division in Flint v Eastern Electricity Board [1975] ICR 395 and in particular, at pages 401 and 402:

“The conclusion I reach is that paragraph (d) cannot be regarded as exhaustive of cases where the ground of the application is the desire to call fresh evidence.  It does not, for example, deal with circumstances where, although the evidence could be foreseen, or indeed reasonably or actually known, it was for some reason or another not available.  I think that paragraph (e) is intended to be a residual category of case, designed to confer a wide discretion on industrial tribunals.  But I do not think that it can embrace a case where the application is on the ground of the desire to call fresh evidence, where it was obvious that that evidence was available and there is no additional factor to be taken into account.  In other words, if I may summarise it, paragraphs (d) and (e) are not mutually exclusive, but paragraph (e) at all events must be applied in practice with some regard to the kind of case which is intended to come within paragraph (d).  And ordinarily speaking, a case which would be put forward under paragraph (d), and which failed under paragraph (d), would fail under paragraph (e) also.  Paragraph (e), I think, exists for the case which, although it may be put forward under paragraph (d), has in it some special additional circumstance which leads to the conclusion that justice does require a review.”

	In response, Counsel for the former employers, the London Borough of Hackney, contends that this is not a case where there is any merit in the appeal at all.  Firstly, Rule 11(d) requires that the existence of the alleged new evidence could not have been reasonably known of or foreseen at the time of the Tribunal hearing in question.  Having regard to the correspondence which took place between Mr Bartholomew and the Council it is, so Counsel argued, clear that Mr Bartholomew knew of information about Mr Beavis’ promotion and that such information was available.  He saw the question of Mr Beavis’ promotion as going to the issue of bad faith and he knew also that it was not the Council’s intention to disclose that material, but to make their submissions to the Industrial Tribunal if any questions arose as to its disclosure.  They submitted that Mr Bartholomew had clear options open to him.  He could have applied for discovery.  He could have applied for an order for particulars and thirdly, he could have raised the matter before the Industrial Tribunal but did not do so.

	In those circumstances it was submitted to us that, following the approach of this court in Flint, the appeal cannot succeed on the grounds that the conditions precedent to the exercise by the Industrial Tribunal of its discretion to review a decision, had not been fulfilled.

	The second submission that was made to us on the London Borough of Hackney’s behalf, was that it is simply not possible or conceivable to suggest that it is remotely arguable that the payments, which the London Borough of Hackney promised to make to Mr Beavis in relation to his prospective return to work, could be described as falling into the category of a corrupt payment or a bribe.  Our attention was drawn to the statutory provisions of the Trade Union and Labour Relations (Consolidation) Act 1992, in particular to Sections 168 and 169 thereof, which require an employer to pay a person in Mr Beavis’ position a remuneration during the time which he takes off for trade union activities.

	In our judgment the submissions made on behalf of the London Borough of Hackney are correct.  It seems to us manifestly clear that Mr Bartholomew knew enough about Mr Beavis’ alleged promotion within the organisation for him to have taken steps to have obtained that information, or to have complained to the Industrial Tribunal that such information had been denied to him.  That would have been the time for him to have made that complaint.  He obviously had some information about the promotion, hence the reference to promotion in those letters.  

	It seems to us that it is far too late for Mr Bartholomew to be raising this particular complaint.  It seems to us that, with the benefit of hindsight, it might have been preferable if the London Borough of Hackney had felt able to disclose the documents which they have disclosed this morning.  But having said that, we recognise the fact that the relationship between Mr Beavis as an employee and themselves, was entitled to be treated with respect and with a recognition that an employer’s arrangements with his own employees is not lightly to be disclosed to third parties.  But in any event, it seems to us that it is simply fanciful to suggest that it is remotely arguable that the arrangements between the London Borough of Hackney and Mr Beavis fall into the category of corrupt arrangements or bribes.

	It is, in the experience of the laymen in this court, a usual course of events for a Branch Officer to be working effectively, full-time on behalf of his members whilst in the employment of the employers and whilst paid by them.  There is nothing inconsistent in the payment by the employers to a Branch Officer who is carrying out those duties, and the doing by that Branch Officer of his duty on behalf of his members.  It is a position which is well known in industry and it would seem to us to be utterly regrettable if it were remotely to be suggested that a Branch Officer was not to be trusted to act on behalf of his members in full, merely because he was in receipt of money from the employers, bearing in mind, in particular, that if he had not been paid by the employers, he, the Branch Officer, would have had a good claim for breach of the employer’s statutory duty to pay him during time off on trade union activities.  

	There is nothing in the correspondence, to which we have referred, which suggests that there is any whiff of corruption or of bribery in this case.

	Accordingly, it seems to us that we should take the view that the application for a review would have been bound to have failed if the Industrial Tribunal had been shown the documentation which has been provided to us.  It seems to us that an Industrial Tribunal is not obliged to give a review of a decision where such a review will end fruitlessly from the point of view of the Applicant. and we have in mind the decision in the case of Wileman which is referred at paragraph (T) 1137 of the Fourth volume of Harvey on Industrial Relations and Employment Law, where this court indicated that one of the matters to be taken into account was the probability of the application for a review having an important influence on the result of the case.

	This is a case where we are confident that this new material completely denies the assertion that the Council have acted corruptly viz-a-viz Mr Beavis, by making him payments or agreeing to making him payments by reference to his position as an employee of the Company.

	Accordingly, we are of the clear view that this appeal must be dismissed.