Appeal No. UKEAT/0034/04/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 April 2004

Before
HIS HONOUR JUDGE PROPHET 
MS K BILGAN
MR S YEBOAH

MR R L FIRTH	APPELLANT

BRC BARNSLEY LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR N SIDDALL
(Of Counsel)
Instructed by:
Messrs Mills Kemp & Brown
Solicitors
1-11 Huddersfield Road
Barnsley
South Yorkshire
S70 2LP	
For the Respondent	MISS J CONNOLLY
(Of Counsel)
Instructed by:
Messrs Gordons Cranswick
14 Piccadilly
Bradford
BD1 3LX	

SUMMARY

Appeal on refusal of Chairman to allow a review on the basis that the reasons for so doing were inadequate.  Held that reasoning was sufficient and appeal refused.

HIS HONOUR JUDGE PROPHET 

1.	This is a case which has been in progress for considerable time.  It began with a complaint of an unfair dismissal by Mr Firth against his former employer BRC Barnsley Ltd submitted on 12 September 2001.  That complaint was duly considered by an Employment Tribunal sitting at Sheffield on 11 and 12 July 2002 with Mr Little as the Chairman and Mrs Franks and Mr Sherriff as the lay members. 

2.	That Tribunal found unanimously that Mr Firth had been unfairly dismissed on procedural grounds but that he had contributed to his dismissal by 50%.  The hearing on remedies was adjourned to a date to be fixed.  An appeal by Mr Firth to the Employment Appeal Tribunal led to a judgment by His Honour Judge McMullen following a hearing on 2 May 2003 and promulgated on 28 July 2003.  

3.	That judgment concluded that unfortunately the Employment Tribunal had not given the parties an opportunity to address it on contribution before making its decision on that matter.  As a result the issue of contribution was remitted to the same Employment Tribunal for reconsideration.  The hearing in that respect duly occurred on 22 September 2003 when not only the contribution issue was reassessed but also submissions were made in respect of the well-known Polkey principles.

4.	The decision of the Employment Tribunal following that hearing was that the contribution was 100% because the Employment Tribunal was satisfied that, as they put it, Mr Firth had been guilty of theft.  Furthermore, they concluded that even if the procedural defects which had been identified at the first hearing had not occurred dismissal would still have been inevitable.  As a result Mr Firth was awarded no compensation.

5.	However, that was not the end of the case.  Mr Firth sought a review of that second decision in an application dated 16 October 2003.on the basis that the interests of justice required further evidence to be presented from a Mr David Stanley, whose evidence would cast considerable doubt on the veracity of the evidence given by Mr Bostock, the employer’s Operation Manager to the hearing on 22 September 2003.  The employer’s written representation opposed the application for a review.  On 13 November 2003 the chairman of the Employment Tribunal refused the application on the grounds that it had no reasonable prospect of success.  
 
6.	Mr Firth has now appealed that refusal and by an Order dated 12 January 2004 His Honour Judge Peter Clark set the appeal down for a full hearing before the Employment Appeal Tribunal.  We are constituted today to hold that full hearing.  Mr Firth is represented by Mr Siddall of Counsel and the employer by Miss Connolly and we are grateful to both of them for the quality of their submissions to us today.

7.	We think it appropriate to say at the outset that it is no part of the function of an Employment Tribunal even when dealing with contributory conduct to decide that a party has been guilty of theft.  That is solely the province of the Criminal Courts and as we understand it no charges have ever been laid against Mr Firth to that effect.  However, we can accept that what the Tribunal was really saying in paragraph 8 of the Extended Reasons was that it was satisfied that Mr Firth had removed diesel from the premises.  We can accept that there is weight in Mr Siddall’s submission that the form of the decision on the application to review can be criticised.  Since it is a decision of the Employment Tribunal the normal process is for that decision to be accompanied under a separate heading with reasons and for those reasons to outline, if but briefly, why the contentions put forward have been rejected.  
8.	The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, Schedule 1, Rule 13(1) states as follows:

“13  Review of tribunal’s decision

(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 ground that –
(a)	the decision was wrongly made as a result of an error on the part of the tribunal staff;
(b)	a party did not receive notice of the proceedings leading to the decision;
(c)	the decision was made in the absence of a party;
(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.”

The Employment Tribunal was directed in the application to the case of Flint v Eastern Electricity Board [1975] ICR 395 where Phillips J indicates that it would only be in special circumstances or where there is some mitigating factor that an application for a review could succeed under Rule 13(1)(e) where it is based on a wish to call further evidence but where that could not succeed under Rule 13(1)(d).  The special circumstances or mitigating factor advanced here was that Mr Bostock whose evidence was important to the Employment Tribunal’s decision expanded considerably in verbal evidence on what he had said in his witness statement in respects of the extent of his contacts with Mr Stanley.  When that was put to Mr Stanley by the Appellant’s representatives after the Tribunal hearing Mr Stanley prepared a statement that there had been no such contacts.

9.	It might have been appropriate for the Employment Tribunal to have indicated in reasons that the Chairman did consider the submissions as contained in the application for a review and how he reached his conclusions on them.  However, notwithstanding Mr Siddall’s well presented submissions to us on that matter, Miss Connolly has persuaded us that despite the brevity of the reasons it would be reasonable to accept that the Chairman of the Employment Tribunal had fully in mind the respective submissions, clearly expressed as they were in the application and the written response from the employer in a letter dated 24 October 2003.  Consequently, it is apparent that the Employment Tribunal was not minded to accept the special circumstances or mitigating factor argument.

10.	It follows that this Appeal Tribunal could only disturb the Employment Tribunal’s decision, if the decision could be said to be perverse.  Mr Siddall accepts that that is a very high hurdle to surmount.  Indeed we are satisfied that the Employment Tribunal’s judgment falls well short of surmounting that hurdle.  The Respondent advised the Appellant well before the remedies hearing of the content of Mr Bostock’s witness statement.  Both sides accept that his credibility was crucial and therefore it was open to the Appellant’s advisers to investigate further if there was to be a challenge to his credibility and if any further evidence needed to be advanced on the Appellant’s behalf on that matter.  As Miss Connolly says, the questioning of witnesses often leads to amplification of what is said in witness statements and there would be no finality to litigation if that could result in the calling of further evidence at a later date.
 
11.	It follows from what we have said that our conclusion, unanimously reached, is that this appeal fails and is dismissed.