Appeal No.EAT/338/99	 

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 November 2000

Before
HIS HONOUR JUDGE D M LEVY QC
MR B V FITZGERALD MBE
MR R SANDERSON OBE

MRS D SELLY	APPELLANT

ROBERT BOSCH LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS JACQUIE BURNETT-PITT
Friend	
For the Respondent	IAN HOLTUM
(of Counsel)
Instructed by:
Messrs CMS Cameron McKenna
Mitre House
160 Aldersgate Street
London EC1A 4DD	

JUDGE D M LEVY QC

1	This is an appeal against a refusal on 6 January 1999 by the Employment Tribunal Chairman, Mr D H Roose to allow a review of the decision of the London North Employment Tribunal, made unanimously on 2 June 1998.  On that date the Tribunal dismissed the Appellant’s claim for unlawful sex and race discrimination, unfair dismissal and breach of contract.  

2	Limited leave to proceed to a full hearing was given by a panel of the Employment Appeal Tribunal headed by Mr Justice Burton on 27 March 2000 following a preliminary hearing at which, as usual, the Respondent did not attend.  

3	The basis of the application for review made to the Chairman was:

a) 	That there was fresh evidence within Rule 11(1)(d) of the Employment Tribunal Rules of Procedure  (1993 Rules) that is, that new evidence become available since the conclusion of the hearings to which the decision related provided that its existence could not have been reasonably know or foreseen at the time of the hearing, and 
b) 	under Rule 11(1) e that the interests of justice require such a review.  

4	At the hearing today, the Appellant has been represented by a friend, Miss Jacquie Burnett-Pitt.  On the earlier occasion before Mr Justice Burton and the panel, there was a different friend representing her.  Miss Burnett has politely and fully said to us, on behalf of the Appellant, all that she wished to say, from time to time in her address, she attempted to inject evidence, of which the Appellant wished us to be aware, some of which might not have been before the Industrial Tribunal.  We have reminded her that the appeal was only allowed on grounds which Mr Justice Burton and the panel had identified, namely that the appeal be allowed to proceed to a full hearing, limited to the 4 page document of statistical information related to productivity and staff efficiency which was produced by the Defendant, attached to an affidavit which he swore on 30 March of this year.  Miss Burnett-Pitt addressed us fully on that, as did Mr Holtum, who appeared for the Respondent as he had done, before the Employment Tribunal.  

5	It is apparent to us that the decision was taken by Mr Roose, pursuant to Rule 11(5) on the grounds that it had no reasonable prospect of success.  He had given to the Appellent, substantial opportunities, in the months immediately following the hearing, to explain why the new material came within the permitted review grounds.  He was the same Chairman who presided at the substantive hearing, which had resulted in the unanimous decision rejecting all the Appellant’s claim; the matters must have been relatively fresh in his mind when he dealt with the review application.  

6	For the Respondent, Mr Holtum has submitted that there was no error of law, at all, by which the refusal of a review could be criticised under Section 21 of the Employment Tribunals Act [1996].  The decision refusing a review does not show on its face, he submitted, that the Chairman misdirected himself in law in any way; rather he submitted that his self direction was entirely correct in that it was plainly not perverse.  

7	The 4 page document produced as new evidence by the Appellant, is a document which is headed “Statistical Information Related to Productivity and Staff Efficiency”.  It was not a document produced by the Respondent, nor was a comparison it seeks to make between the Applicant and the comparator employee, Margaret Moriarty, one which the Respondent made.  Ms Smith, the manager responsible for the decision not to promote the Appellant did not say that she made such a comparison in reaching her decision.  In that regard we refer to the undated statement of Ms Smith, which is with our papers, and was sent to us by the Respondent’s solicitors on 17 October 2000.  Ms Smith said the contents of her statement were true; we have no reason to disbelieve anything that she had said in that statement.  She said that the reports were produced to monitor how well the department, in which the Appellant worked, overall, was expected to do and how well it did in meeting the customer demand for its products; the statistics were not kept for the purposes of staff comparison.  

8	The Respondent submitted that that evidence should have been available prior to the hearing, if the Appellant thought it relevant.  The Appellant plainly knew, as part of her job as a planner of products manufactured by the Respondent, that the department had targets to try to meet to ensure that the right products were supplied in the right numbers at the right time to customers; she was indeed required to do her part to meet such targets.  If she really thought that these statistics were relevant to showing that she was a better planner than the comparator, then she could have sought production of the reports which the Respondent did actually keep and then used them at the hearing for this purpose.  

9	That submission was made because of the grounds on which appeals are allowed in this Court as in the Court of Appeal, those grounds were elucidated by Mr Justice Popplewell giving judgment in Wileman -v- Minilec Engineering Ltd [1988] IRLR 144.  There it was held that the test adopted for appeals for the Court of Appeal laid down in Ladd -v- Marshall [1954] 1 WLR 1489 were to be followed, the relevant quotation from the judgment is set out at paragraph 10 of that report. 

10	If a Respondent to an appeal is to be deprived in his judgement by further evidence, three conditions must be satisfied.  First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, secondly the evidence must be such that, if given, it would probably have an important influence on the result of the case though that need not be decisive, thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible that it need not be in contravention.  

11	It was in support of the first of those headings that Mr Holtum made that submission, although he may be right on this, it is on the second of the grounds that we think that the Appellant has serious difficulties in this case.  So far as the first ground is concerned, in her affidavit, the Appellant does not give an explanation as to why she did not seek to have such evidence at the hearing, despite extensive opportunities given to her by the Chairman before making his decision, but we cannot altogether blame her for this, in a case which was full of other potential difficulties for her.  

12	But as to the second ground, Ms Smith’s statement says that the figures in the Respondent’s report are not even identical to those produced by the Appellant, secondly the Appellant was trying to use the figures for the purpose of staff comparison, a purpose for which they were neither prepared nor actually used, and the results were affected by many other factors, apart from the performance of the planners.  It is suggested that Ms Smith did not say at the Employment Tribunal hearing, that she had made a comparison based on the statistics which the Respondent did keep, nor, it was submitted, did the Employment Tribunal find that she did.  We, of course, have not got a transcript of Ms Smith’s evidence, but certainly the Employment Tribunal did not make any such finding.  

13	We think there is very great force in Mr Holtum’s submission that the points made on the statistics by the Appellant do not assist her in satisfying the test made by Ladd -v- Marshall for the introduction of new evidence.  Ms Smith’s statement makes it clear, beyond peradventure that the figures in those statistics were not comparables and the full judgment of the Employment Tribunal makes it clear that the relevant matters were decided by them.   

14	In the circumstances, it seems to us that this appeal cannot proceed.  The second ground in Ladd -v- Marshall certainly is not satisfied and we do not think that the first ground is either.  In those circumstances it is not necessary for us to consider the last ground.  If we did have to consider it, we would come to the conclusion that whatever is in that last ground does not assist the Appellant in the case which she now seeks to put forward.  It is noted that the Appellant has already unsuccessfully tried to appeal to this Tribunal against the original substantive decision of the Employment Tribunal -  that application to appeal was dismissed by Mr Justice Lindsay, after a hearing on 7 December 1998, and this, we fear, is a further attempt to adduce further evidence to re-open a case which has, in our judgment, been properly decided by the Employment Tribunal.  

15	In the circumstances, we do not consider that the learned Chairman erred in his decision to dismiss the review application and we dismiss this appeal.  We pay tribute to the courtesy and assistance which Miss Burnett-Pitt has shown and given us in the course of her submissions.