Appeal No. EAT/983/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 12 October 1995

	Before

	THE HONOURABLE MR JUSTICE MAURICE KAY

	MISS A MADDOCKS OBE

	MISS A MACKIE OBE

MICHAEL EGAN T/A ROE ACRE SERVICE STATION	APPELLANTS

MRS I CROMPTON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR KERRY UNDERWOOD
(of Counsel)
Appearing as Solicitor (Agent)
Joe Egan
Solicitors
135 High Street
Little Lever
Bolton BL3 1LX

For the Respondents	MR PAUL GILROY
(of Counsel)
Messrs Berg & Co
Solicitors
Byrom Court
7 Byrom Street
Manchester M3 4PF

	MR JUSTICE MAURICE KAY:   Mrs Irene Crompton was the Manageress of the Roe Acre Service Station owned by the Respondent at that time.  Mr Egan, the Respondent, did not work full time at the Service Station.  He had other business interests.  

	On 29 November 1993 Mr Egan dismissed Mrs Crompton.   The background to that related to a dispute about the length of a holiday taken by Mrs Crompton.  She left work on 11 November for a holiday intending not to return to work for three weeks.  The fundamental dispute of fact between the parties is that it was Mrs Crompton's evidence that she had gone away for three weeks with Mr Egan's agreement and blessing, whereas it was Mr Egan's evidence that when he had come to know of her intention to be away for three weeks, he had protested strongly to the point of telling her that if she stayed away for three weeks she would be dismissed.

	At the hearing in the Industrial Tribunal the case turned very substantially upon the conflict of evidence between Mrs Crompton and Mr Egan.  In the event, the Industrial Tribunal preferred the evidence of Mrs Crompton.  She was found to have been unfairly dismissed and Mr Egan was ordered to pay her £5,476.90 by way of compensation.

	That hearing had taken place on 25 May 1994 and the decision was by way of Reserved Decision dated 22 June 1994 and sent to the partes five days later.  By a letter dated 5 July 1994 Solicitors acting on behalf of Mr Egan wrote to the Industrial Tribunal applying for a review of the decision pursuant to Rule 11 of The Industrial Tribunals (Constitution) and Rules of Procedure) Regulations 1993.  They raised two issues.  The first was to do with the calculation of compensation and in respect of that the Chairman of the Tribunal has granted leave for a review which has yet to take place.  No issue arises before us as to that matter.  
	The second matter was more fundamental.  Mr Egan invited a review on the grounds that new evidence had become available since the conclusion of the hearing and it was evidence the existence of which could not have been reasonably known of or foreseen at the time of the hearing.  We are referring here to the express words of Regulation 11(1)(d).  Alternatively, Mr Egan submits that it was in the interests of justice for there to be a review under Regulation 11(1)(e).  

	The new evidence is set out in an affidavit of May O'Reilly sworn on 5 July 1994, that is to say after the hearing in the Industrial Tribunal but before the application for a review was heard.  The potential significance of Mrs O'Reilly's evidence is this.  In the Industrial Tribunal it was very much a case of one person's word against another and the Tribunal favouring the word of Mrs Crompton.

	Mrs O'Reilly testifies in her affidavit that approximately a month before Mrs Crompton went on holiday Mrs Crompton telephoned Mrs O'Reilly and asked her to listen to a taped conversation between Mrs Crompton and Mr Egan.  Mrs O'Reilly's affidavit continues:

		"4.  ...  I recall hearing Irene tell Michael that she was taking a three week holiday, and Michael's reply being `if you do, then you're fired!'.  She asked me what I thought and I asked her if she was taking the holiday.  She sounded very smug and replied that she was." 

	Later in the affidavit Mrs O'Reilly states that during the time between the telephone conversation and 11 November: 

		"6. ...  Irene constantly referred to the dispute to myself and other members of the staff.  She was adamant that she would take three weeks off work in defiance of her employer's orders."

	The injection of material from Mrs O'Reilly is not a complete novelty in this case, in that prior to the original hearing before the Industrial Tribunal she had provided a written statement dated 15 May 1994, confirming some evidence about the events of 29 November.  She must have provided that material to Mr Egan for it was he who placed it before the Tribunal as evidence, our understanding being that the Industrial Tribunal received it as evidence, and did not see Mrs O'Reilly as a witness.  Her document of 15 May 1994 is confined to essentially acting as a messenger between Mrs Crompton and Mr Egan on 29 November.  It makes no reference whatsoever to any conversations with either of them before 11 November when Mrs Crompton had gone on holiday.  

	When the Tribunal Chairman, Mr W.G. Beckett, considered this application for a review under this heading, he refused it: 

		"2. ...  on the grounds that it has no reasonable prospects of success.  Clearly, such new evidence was in existence at the date of the hearing and could have been reasonably known or foreseen by the respondent."

	It is against that refusal that Mr Egan now appeals to this Tribunal.  The application to this Tribunal has proceeded in the normal way.  There was an ex-parte hearing on a preliminary basis presided over by the President of this Tribunal and the appeal was allowed to proceed to a full hearing.

	For the appeal to succeed we would have to come to the conclusion that Mr Beckett, the Chairman of the Industrial Tribunal, reached a decision that was plainly wrong and was one that no reasonable Tribunal would have reached in the circumstances.  In other words, that it was perverse in the legal sense of that word.  

	In the course of the hearing our attention has been drawn, not only to the provisions of Rule 11, but also to the authority of Wileman v Minilec Engineering Ltd [1988] ICR 318 where the Employment Appeal Tribunal was concerned with the criteria for the admission of fresh evidence in a hearing before the Appeal Tribunal itself.  Both parties are agreed, for practical purposes, that there is no material difference between a combination of Rule 11(1)(c) and Rule 11(5) on the one hand, and the well known criteria for the admission of fresh evidence in appeal cases set out in the Wileman case.  

	We take the view that the evidence of Mrs O'Reilly is apparently credible.  It is clear to us that are lines of cross-examination which might lead a Tribunal, which had the benefit of seeing her and hearing her, either to accept it or reject it.  But at this stage and on paper, it is, in our judgment, credible.  We ought, on principle, to say no more about that.

	One of the submissions made on behalf of Mrs Crompton is that even if it is credible and had been given and had been accepted, it would not have made any difference to the outcome of the case.  This submission is based on paragraph 18 of the Industrial Tribunal's decision which is in the following terms:

		"18.  Whilst in certain circumstances it might be valid for an employer to summarily dismiss an employee on the grounds of substantial misconduct by not returning to work at the appropriate period of time, the Tribunal did not think that this was so in this case and it was not in their opinion the response of a reasonable employer to a senior employee, to take the peremptorily action to dismiss on 29 November whilst she was on holiday and furthermore, not to make any contact with her whatsoever prior to doing so, although the respondent well knew that she was back in England and could have been contacted at any time."

	In our judgment that passage does not, or does not necessarily, have the meaning which Mr Gilroy on behalf of Mrs Crompton, seeks to give to it.  When the Tribunal stated that it "did not think that this was so in this case", that was in the context of their finding on the evidence heard that there had been no conversation prior to the holiday in which Mr Egan had given a dismissal ultimatum.  It seems to us that the Tribunal may have taken a different view and may not have expressed themselves in that way if their finding had been to the contrary.

	So when we consider the question "whether the evidence if admitted and accepted would have made a difference to the outcome of the case" we have come to the conclusion that it is possible that it would so have done.

	The most difficult aspect of this case has been the question "whether the existence of this evidence could have been reasonably known of or foreseen at the time of the hearing".  The Tribunal Chairman came to the conclusion, having read the documents submitted on behalf of Mr Egan (including the affidavit of Mrs O'Reilly), that it could have been reasonably known of or foreseen at the time of the hearing.

	We have investigated those documents and we have taken into account the observations upon them that have been made to us by Mr Gilroy on behalf of Mrs Crompton.  The test is an objective one, that is to say "whether the existence of the evidence could have been reasonably known of or foreseen at the time of the hearing".

	It is clear that at the time of the hearing Mr Egan had had some recent contact with Mrs O'Reilly; that is apparent from her document dated 15 May 1994 which was produced by Mr Egan at the hearing some ten days later.  By that time, it seems, Mr Egan's contact with the garage was either reduced or in a different capacity because he had disposed of his interest in it between Mrs Crompton's departure and the date of the hearing.

	The essence of Mr Gilroy's submission, on this aspect of the case, is that because Mr Egan was in contact with Mrs O'Reilly (witness the document dated 15 May 1994) he had every opportunity to ask her and any other employee whether they could throw any light on this issue between the parties and, if they could, then he would have been in a position to use it at the hearing.  That submission is added to by the observation that the garage was a relatively small work place and it would not have taken a great deal of effort to go around all the employees to carry out such an investigation.

	We have given full consideration to that submission.  We have also read what is said on behalf of Mr Egan in his own documents, and what Mrs O'Reilly herself has said in her affidavit.  We have taken into account that in a document signed by Mr Egan on 8 December 1994 he stated that he had no contact with May O'Reilly after the closure of the business.  This seems to live uneasily with the date of the letter of 15 May.  However, having taken all these matters into account, we have come to the conclusion that the evidence that Mrs O'Reilly brought to his attention only after the hearing, could not have been reasonably known of or foreseen at the time of the hearing.  

	We remind ourselves that merely because we take that view, does not enable or require us to allow this appeal, since we are only able to allow this appeal if we come to the conclusion that the Industrial Tribunal Chairman reached a decision which was perverse in the sense to which we have referred.

	We have come to the conclusion that on the material that decision of Mr Beckett was plainly wrong; that no reasonable Tribunal ought to have refused the review; and that it was, in that sense, perverse.

	Accordingly, this appeal must be allowed and when the matter comes for review before the same Tribunal, that review must embrace the evidence of Mrs O'Reilly.  Clearly, it is evidence with which Mrs Crompton will take issue and it will be necessary for the Tribunal to hear again from her.

	We add this, that Rule 11(1)(d) as properly construed, is not an exhaustive provision for the circumstances in which new evidence may be received.  Mr Egan's application also referred to 11(1)(e) and whilst it is well known that cases in which 11(1)(e) should be used to justify the introduction of new evidence are rare, if we had been compelled to the conclusion that the appeal failed on the basis of 11(1)(d), we would have been of the view that there would be a risk of injustice by the refusal to hear the new evidence.  

	It may be therefore, that in those circumstances, this is one of those rare cases.  We wish to emphasise to the parties and, indeed, to the Industrial Tribunal, that our conclusions are not intended to pre-judge in any way the quality of Mrs O'Reilly's evidence.  We are simply satisfied that it overcomes the credibility threshold.  It will be for the Tribunal to asses it, when they have seen and heard her, and then to use it in reaching and reviewing their decision as they see fit.