Appeal No. UKEATPA/1708/09/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 July 2010

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MS D M ARROWSMITH	APPELLANT

NOTTINGHAM TRENT UNIVERSITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION - APPELLANT ONLY

	APPEARANCES

For the Appellant	MS D M ARROWSMITH
(The Appellant in Person)	

SUMMARY
PRACTICE AND PROCEDURE
Review
Appellate jurisdiction/reasons/Burns-Barke

The Employment Tribunal did not err in refusing at a review hearing to vary its decision.  The new evidence would not have an effect on the decision.  Observation in Meteor Parking applied: the Employment Tribunal is the better place for such issues to be determined.    
HIS HONOUR JUDGE McMULLEN QC 

1.	This case concerns an application for a review, its refusal and an order for costs.  I will refer to the parties as the Claimant and the Respondent.  I have read the papers in the bundle provided for today’s hearing, and some of the documents in an additional bundle which has also been provided this morning by the Claimant.

Introduction
2.	It is an appeal by the Claimant in the substantive proceedings against a reserved judgment of an Employment Tribunal sent to the parties on 17 November 2009, following a hearing on 4 November 2009 at Nottingham under the chairmanship of Employment Judge Blackwell, registered with reasons on 17 July 2009.  The Claimant represented herself.  The Respondent was represented by a solicitor.  The principal claim is of sex discrimination arising out of treatment by the Respondent said to be unlawful on the grounds of her pregnancy.  The claim was dismissed following a four-day hearing, including time in deliberation.

3.	Today is the seventh judicial consideration of the Claimant’s case, two at the Employment Tribunal and five here.  The Notice of Appeal  came before HHJ Clark on the sift who decided as follows:

“The Appellant, an agency worker, complained to the Employment Tribunal that she had not been appointed to the BDO post for which she had applied because she was pregnant.  The interview took place on 7 August 2008.  The critical factual question for the Employment Tribunal was whether 2 members of the interviewing panel (or either of them) knew that the Appellant was pregnant at that time.
Having heard the evidence on both sides the Employment Tribunal accepted the denial of knowledge by both panel members, Ms Holstein and Dr Albery (both female).
In arriving at that factual conclusion the Employment Tribunal carefully analysed the conflicting evidence at para 4 of their Reasons.
The grounds of appeal barely assert that such a conclusion was perverse – a judgment no reasonable tribunal could reach.  Apart from its lack of specificity that contention is wholly unsustainable as a matter of law.  There was evidence to support a conclusion either way as to the relevant knowledge.  Neither conclusion could be termed perverse.
In short, the Appellant lost on the facts.  No point of law arises in this appeal.”

4.	Dissatisfied with that, the Claimant exercised her right and sought an oral hearing which came on before Underhill P on 20 January 2010 under rule 3(10). It was dismissed and no further action was to be taken.  Meanwhile, the Claimant had applied for a review of the judgment.  The application was a 13-page detailed challenge to the judgment.  The Employment Judge sat with Members at a hearing.  There appears to be no formal conclusion on the application.

5.	As I have held in countless cases (see, for example, Secretary of State for Health v Rance [2007] IRLR 665) an application for a review must be considered by a full Tribunal under rule 36(1) unless a Judge has decided that it has no reasonable prospects.  So as I have attempted to show to the Claimant today, she surmounted the first hurdle, which was a paper disposal by the Judge without reference to Members or a hearing.  Thus it was that on 4 November 2009, she had a hearing.  The formal order ought to have been that the application for review was granted.  That is the only conclusion that can arise under rule 36(1), and so while it may be no solace to her, she has in fact had a full hearing of her review.

6.	The outcome of the review was to refuse to vary the order.  The Respondent’s application for costs succeeded and £3,000 was to be paid by the Claimant.  The Claimant appealed and the matter came again before Judge Peter Clark.  In a letter sent on his behalf on 8 March 2010, he recounted the history and came to this opinion:

“Now the Appellant appeals the review decision and, I infer, the costs order.  The sole ground of appeal is that the review judgment was legally perverse.  No particulars are given.  An appeal so framed cannot possibly succeed.”

7.	Dissatisfied with his opinion, the Claimant then exercised her right to enter fresh grounds of appeal.  The matter came again before Judge Clark and he said this:

“The Appellant’s fresh grounds of appeal (letter lodged on 6 April with attached bundle) disclose no arguable point of law.  I reach that conclusion, not on the basis of lack of ‘legal’ drafting, but because at the heart of the proposed appeal (which is against the review, not substantive decision of the Employment Tribunal) Appellant merely asserts that on the crucial factual question of knowledge her case might have been preferred to the evidence of the Respondent’s witnesses.  That question of fact was for the ET; not the EAT.”

8.	Dissatisfied with that opinion, the Claimant exercised her right to have a hearing, and so it is before me, making it the seventh judicial consideration of the Claimant’s case.  In Haritaki v SEEDA UKEATPA/0006/08 at paragraphs 1 to 13, I set out my approach to hearings such as this under rule 3, and those paragraphs should be read with this judgment.  The question for me is whether there is a reasonable prospect of success in the points the Claimant wishes to make.

The legislation
9.	The legislation is not in doubt.  The procedural part of the legislation concerns reviews, and this is contained in the 2004 rules, rules 34-36.  Rule 34(3) provides the gateways for a review and there is no dispute that the issues before the Employment Tribunal on review and before me are new evidence becoming available and the interests of justice.  Those are categories under which a Tribunal can conduct a review and if upheld would involve consideration of whether to confirm or vary the decision.

10.	The substantive law which is not on appeal before me under the Sex Discrimination Act 1975 is set out by the Employment Tribunal in paragraph 2 of its substantive judgment.  The factual issue requires an understanding by the Respondent that the Claimant was pregnant.  The issue was the reason for the Claimant’s non-appointment as a BDO (see the summary of the judgment encapsulated by Judge Peter Clark in his rule 3 opinion on 13 October 2009).

The Claimant’s case
11.	The Claimant’s case on appeal could not be shorter, and it is not surprising that Judges of this court have found nothing in it.  The judgment was one which no reasonable Tribunal could have reached.  As she has explained to me today, and as Judge Clark inferred, it is an attack on the review and on the costs aspects of the November 2009 judgment.

12.	Since the grounds of appeal consist of one line, I have, in fairness to the Claimant, gone into the request for review which was put before the Employment Tribunal to see if that supports her case that the Tribunal erred in law.  The Tribunal examined each of the strands in that 13-page notice.  Since then, the Claimant’s position has hardened, for the attack upon Ms Holstein has now focused on Ms Holstein’s dismissal.  That is a new circumstance not available to the Employment Tribunal.  It is said by the Claimant that Ms Holstein has been dismissed for her misbehaviour in connection with this very case.

13.	The Employment Tribunal divided its approach to the application for review into two parts, a sensible approach to the diffuse application.  The first relates to the nature of the evidence which was available.  The overall account of the Employment Tribunal is that the Claimant entirely disagreed with the conclusions.  That is apparent before me today too.  As part of that disagreement, there is a substantial attack upon the evidence.  In chapters variously described as, “Evidence overlooked, not taken into consideration” and, “New evidence” points are dealt with by the Employment Tribunal arising directly from the Claimant’s written application.  In my judgment, the Employment Tribunal has there correctly analysed the issues which were before it at what I have held to be a review hearing.  

14.	The second part of its decision relates to criticisms by the Claimant of the conduct of the hearing.  This primarily focuses upon the conduct of one of the leading lights in the Respondent, Professor Yazdani.  It also relates to distracting behaviour by its witnesses during the hearing.  The Tribunal decided that there was no new evidence probative of a relevant nature and having heard the issue, decided not to vary its judgment.

15.	In the application for costs, the Tribunal directed itself in accordance with Daleside Nursing Home Limited v Mrs Mathew UKEAT/5019/08/RN in the following terms: where at the heart of a claim is an explicit lie alleging racial abuse, the Tribunal errs in failing to find that the Claimant acted unreasonably in bringing or conducting the claim and should have made an order for costs.  The Respondent alleged that that was what occurred in this case.  The Tribunal accepted that the conduct had been unreasonable, as her allegations were untrue, and so acceded to the application made by the Respondent to have a costs order made against her.  The Tribunal noted that the costs well exceeded £10,000, but decided appropriately to cap it at £3,000.  The Claimant contends that no reasonable Tribunal would have made this order.

Conclusions
16.	In my judgment, the Tribunal came to a conclusion on the application for review which was open to it.  It addressed the law correctly, it considered the various gateways through which a review could pass.  It conducted a hearing which was fair.  It took account of the criticisms made by the Claimant of the conduct of the Respondent and its witnesses at the hearing and the Tribunal said that it was not an unfair hearing on the substantive case for those matters to have been addressed.  As to the evidence relating to Ms Holstein, Professor Yazdani and Dr Albery, the Employment Tribunal went through each of the allegations made.  In my judgment, the overall conclusion of the Tribunal is correct.  It variously held that the evidence was available and was not adduced, but in particular held that such material as could be adduced before it on review would not have a material bearing on the decision.  This was a perspective uniquely open to it.  The President, in Meteor Parking UKEAT/1570/09 has indicated (without finally deciding) that such matters as that are for the Employment Tribunal and not for the EAT.  I have the reasons of the Employment Tribunal on the review, which itself considered all of the points.  The question for me is whether there is an error of law.

17.	The central finding which is uncomfortable for the Claimant is that she did not tell the truth.  That is a question of fact for Employment Tribunals.  Parliament set them up in order to determine disputes such as this.  The Claimant has been assiduous in asserting that she was truthful.  She has caused complaints to be made to the Regional Employment Judge through the Office of Judicial Complaints; she has written to the present and former Prime Minister, the Ministry of Justice and the Home Secretary, all without any result in her favour.

18.	It seems to me once it is understood what the role of the Employment Tribunal is in such applications, the opportunity to change it is extremely limited.  I do not accept that this case crosses the threshold for a perversity challenge (see Yeboah v Crofton [2002] IRLR 634).  The grounds that the Claimant attaches by way of her application to the Tribunal for review do not create an overwhelming case that the Tribunal was wrong in law.  Faced with a straight conflict of evidence between officers of the Respondent and the Claimant as to the state of the formers’ knowledge, the Tribunal made a decision which was open to it.  The dismissal of Ms Holstein is not strictly a relevant matter in these proceedings.  What was relevant was whether she was believed at the Employment Tribunal.  That her employer subsequently sacked her does not affect materially the contest between the Claimant and Ms Holstein as to who was telling the truth.  The Tribunal was able, on the evidence before it, to make a decision and the Employment Tribunal, consisting (as it does) of three people hearing the evidence has to hear such disputes and to resolve them.

19.	I see no error of law, and so this application under rule 3(10) is dismissed.  The appeal will be taken no further.

Appeal
20.	On my advising her of her rights in respect of appeal, the Claimant has made an application for permission to appeal.  It follows from the view that I have taken that there is no element of perversity here, that I consider there is no reasonable prospect of success.  Nor is there any compelling reason for this simple of issue of fact to take up the time of the Court of Appeal.

21.	I bear in mind the words of Maurice Kay LJ in North Glamorgan NHS Trust v Ezsias.  This case cannot be said to raise an important point of principle or practice, being essentially against the discretion of the Tribunal to refuse to vary its order on review and the discretionary award of part of the costs.  At paragraph 43, Maurice Kay LJ said this:

“All courts are familiar with the litigant, often an unrepresentated litigant, who will never take no for an answer, however unpromising his/her cause.  Under the new appeals regime, however, such litigants must appreciate that the general rule will be that the decision of the appeal court on the first appeal will be the final decision.  If they wish to pursue the matter further and to incur the often quite heavy costs involved in paying the court fee and preparing the appeal papers, the Court of Appeal may dismiss their application quite shortly, saying that the appeal raised is no important point of principle or practice and there is no other compelling reason for the court to hear the appeal.”   

22.	I adopt the judgment of Wall LJ in Fosh v Cardiff University [2009] EWCA 38 at paragraph 42, where he said:

“I feel that like many highly intelligent non-lawyers, the applicant puts a great deal of faith in detail and in complexity.  This is actually a quite simple case.” 

23.	I refer the Claimant to the information on the adverse costs regime in the Court of Appeal, given by Mummery LJ in Akintola v Capita Symonds Limited [2009] EWCA Civ 1425, paragraph 14, and I adopt what Sedley LJ said in Mitchell v Barratt Homes Limited (Leeds) Limited [2010] EWCA Civ 22 on appeal from me, I would be putting her on a highway to nowhere if I acceded to this application for permission to appeal.  It is refused.