Appeal No.	 EAT/56/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 December 1998

Before
HIS HONOUR JUDGE J ALTMAN
SIR GAVIN LAIRD CBE
MRS J M MATTHIAS

EXECUTIVE CLEANING SERVICES PLC	APPELLANT

MR W ROSS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR S HORNETT
(of Counsel)

MESSRS LUCAS BARON JACOBS
Solicitors
Law Chambers
High Road
Leyton E10 7AA	
For the Respondent	MR H IMMANUEL
Solicitor

MESSRS IMMANUEL & CO
Solicitors
70 Gloucester Place
London W1H 3HL	

	HIS HONOUR JUDGE ALTMAN:	This is an appeal from the decision of the Industrial Tribunal sitting at London (North) on 3 November 1997.

	The Respondents appeal the refusal of their application to the Tribunal for the Tribunal to review its decision that the Applicant was unfairly dismissed, such decision relating to a hearing before the Tribunal in London (North) on 26 March 1997.  The reason for the review was that after the original hearing, the Respondents came into possession of evidence which showed that the P45 evidencing termination of employment on 4 July 1996 was in fact not sent until August 1996.

	Very briefly, it appears that the Respondents had taken over a cleaning contract to which the Transfer of Undertakings (Protection of Employment) Regulations applied, so that from the beginning of July 1996, they would be in the Applicant’s employ.  But the case of the Applicant was that he was not given any work in that time and the ‘deafening silence’, to use my own term, from the Respondents demonstrated their termination of the Applicants employment during that month.  The Respondents case was that on the contrary, employment had come to an end because the Applicant himself had not presented himself for work.

	The evidence before the Tribunal, we are told and we accept, covered a wide range of issues but essentially the question was,  was there a dismissal?   Before the first hearing took place, there was extensive correspondence between Mr Immanuel, the solicitor for the Applicant, the Personnel Manager who was dealing with this case for the Respondents and who represented the Respondents before the Tribunal and also the Tribunal itself about the discovery of documents.

	There is no doubt that the Applicant was ordered to disclose a list of all documents upon which he intended to rely but that order was not complied with.  Mr Immanuel wrote a letter saying that he had received a different order but an examination of that clearly demonstrates that it was not so much a different order as a blank order.  He wrote a letter saying, that in effect all his documents were with the Respondents and he had not yet fully prepared the case with his client so matters were to some extent up in the air on the morning of the Tribunal hearing.  

	In his possession, the  Applicant had a document handed to him by his Trade Union Representative who had earlier enquired from the Personnel Department for the Applicant’s P45 because he had not got one.  The Trade Union Representative had received from Penny Crawford, in place of  the P45, a note which said “Willy Ross P45 was sent to his home address on 4 July and has not been returned by post so he should have received it”.  That document was not objected to by the Respondents at the hearing but they did not seek an adjournment and quite probably, they did not see on the face of it anything to question its accuracy.  We bear in mind that the case was being presented, as cases before Industrial Tribunals are intended to be represented, by someone who was no doubt experienced in personnel matters, but not experienced in advocacy or court procedures.

	After the hearing, within the 14 day period after promulgation of the decision, the Respondents discovered, from within their own records, evidence which showed that the P45 was not sent out until August.  Their evidence in explanation of that was in effect that reliance, by the Tribunal, on the original note was incorrect, and that the reason for the error on the part of Penny Crawford was that she had simply assumed from the computer records the sending of the P45 on 4 July because that was the date shown as the date since when no payments had been made, for work, to the Applicant.  Therefore the Respondents applied for the Tribunal to review its decision and effectively reconsider the evidential significance of the sending of the P45, having made such findings of fact on the further evidence as were appropriate.  The Respondents applied for the Tribunal then to review its final decision that there had been an unfair dismissal.  That involved two considerations.  The first was to examine the way in which this evidence had become available after the hearing rather than at the hearing.  The second was to consider the evidential significance of this new material and on the basis of its conclusions on those two considerations, for the Tribunal to exercise its discretion in accordance with the powers of review in Rule 11 of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993.

	The situation about the disclosure of the document was dealt with by the Tribunal in its extended reasons.  They referred to the grounds of the application set out in a letter dated 2 June from the Respondents’ solicitors, in which they contend that the evidence is new evidence and that they could not have reasonably known or foreseen that evidence of the precise date on which a P45 was sent would be required and that the application relies essentially to the procedure for production of documents. They say that it follows that the Applicants’ failure to comply with an order made by the Industrial Tribunal resulted in the Respondents’ inability to marshall evidence before the Tribunal at a hearing which would have contradicted evidence which is described by the Tribunal in its summary decision as “the clincher”.  They go on to say that the interest of justice requires such a review, namely that the Tribunal’s decision is based on evidence which was brought before the Tribunal late so as to surprise and effectively ambush the Respondent so that the Respondent was not given adequate time to prepare its case.  We will simply pause to say that the clearly critical tone of the application, carries with it the imputation of blame for the taking by surprise of the Respondents by the Applicant and his representatives.

	First of all the Tribunal dealt with the question of surprise and they suggest that if the last minute production of this document took them by surprise, it was open to them to request an adjournment to clarify and to check the document and what it implied.  No such adjournment was sought.  That is what the Tribunal says about the process by which the further evidence came about which cast doubt on the original document.  We accept what Mr Immanuel has told us, that no point was taken at the hearing before the Industrial Tribunal as to any doubt on the part of the Respondents as to the veracity of the note to which I have already referred, let alone any criticism of the Applicant and his representative for the way in which this matter had been brought about.  

	After the decision before the Tribunal, and after reference was made in the Tribunal’s decision that refers to the P45 as a clincher, it appears that the Respondents did their additional research. But there is no evidence before us to suggest that the Respondents did anything other than accept, without demur, the truth of the content of that document.  It therefore seems to us that at the review hearing, there was no evidence before the Tribunal that the advanced disclosure of that document would have made any difference.  There was evidence before the Tribunal that once the Respondents realised the significance attached to that document by the Tribunal, they engaged in research.  Whilst there was no evidence about it, we note as a matter of interest, although it was not specifically addressed, that the original IT3 specified the date of termination of the Applicant’s employment as being as alleged in the IT1, namely July 1996.

	In that context, it is suggested to us by Mr Hornett on behalf of the Respondents that this evidence came within Regulation 11(1)(d), namely that 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 or foreseen at the time of the hearing.  The Regulation is very tightly drawn;  it requires new evidence and it provides that the existence of that evidence could not have been reasonably known or reasonably foreseen.  We have grave doubts as to whether the record of sending a P45 which was in the possession of the Respondents throughout can really be described as new evidence that has become available.  It may be evidence that has been unearthed but at best it is old evidence that has been newly dug out of the Respondents own archives and that does not seem to us to be the sort of evidence that is intended to come within those Regulations.  Otherwise, once a party at the end of a hearing realises the significance that a Tribunal has attached to particular pieces of evidence, it could argue, under the interpretation contended for by Mr Hornett, that there is a much wider availability of review than it seems to us common sense would dictate.  

	Furthermore, it must be remembered, it seems to us, that even if that condition is fulfilled in this case, the Regulation begins with these words: 

“A Tribunal shall have power to review any decision. “

	 It is the giving of an exceptional discretion that is aimed at by these Rules, without which there would be an end to litigation as is almost always the case in civil procedures in other jurisdictions.  It is in itself an exception to the ordinary course and it is something of a safety valve for cases which were originally intended to come before Tribunals very quickly after the incident complained of, to be handled by people very often in person, to bring a quick result.  That very speed could have brought with it injustice and this provision is, it seems to us, something of a safety valve.

	But that is a gloss of no great significance in terms of construction on the position.  It seems to us however quite clear that the Tribunal was rather directing itself to the question as to whether the interests of justice required such a review because they go specifically to the opportunity for requesting an adjournment.  We have been very helpfully referred to those cases which themselves contain most helpful guidance on the approach to be taken, where the interest of justice argument relates to the production of further material such as that also falls within subsection (d): Flint v The Electricity Board (1975) ICR, 395, The General Council of British Shipping v Derriere and Others (1985) ICR, 198 and Trimble v Supertravel Limited 1982 (ICR), 440.  

	Those cases set out the tests to which we have been referred and we do not wish to put our own gloss upon it, or add to the various variations of phrases which have been used over the years to describe the tests to be applied; we draw back from that because simply adding different phrases would only lead to confusion.  We accept that what is sought in relation to material which is akin to, but not within subsection (d), is an additional circumstance other than those envisaged in (d), which would bring it within (e).   It seems to us that that clause also embraces as it must, a view of the probative value of the new evidence and its place within the decision of the Tribunal.  

	That brings us on to consider paragraph  3, which was the basis upon which the Tribunal drew together its decision to refuse the review.  The Respondents had argued that by referring to this note as the “clincher” in reaching their judgment on the essential difference of fact between the parties, the Tribunal demonstrated that this was an important part of their decision.

	In their decision of 26 March 1997, the Tribunal refer in paragraph 2 to their view of the facts and it is important to look at it as a whole:  

“We take the view that, on the events leading up to the take-over when looked at as a whole, there was obviously what could fairly be described as a “shambles” here, much of which was not the fault of the present Respondents, but their predecessors, who gave in dribs and drabs the information regarding the various personnel.  Mr Webb made certain decisions which we accept both by documents and inference amounted to a dismissal of the Applicant against the backgrounds of that shambles.  The fact that there was a P45 sent to the Applicant on 4 July 1996 is the “clincher” if there needed to be one.  The treatment by Mr Webb of the Applicant and his failure to give him any work, although he was number one on the list, and that was known to Mr Webb on 1 July, indicate to us a desire not to employ the Applicant anymore.  We are not blaming Mr Smith or Ms Cobham.  The events which culminated in Mr Webb having that in mind caused him to act in such a way that the Applicant was led to believe his employment was at an end.  After all, it was for the Respondents to pay their employees and, in particular, the Applicant when there was work available.  This had happened for some time.  It was for the Respondents to take the initiative and contact the Applicant saying “there is work for you; come in”.  It was not for the Applicant to contact them saying “is there any work for me? May I come in?”.  Against that background, we were led to the inevitable view that there was a dismissal here. Because it is a dismissal relating to the transfer of the undertaking to the Respondents, the dismissal is automatically unfair.”

	The date of termination is the matter which primarily is evidenced by the P45 and there was no issue about it.  What the Tribunal was relying upon in their decision was not so much the content of the P45, but the fact that it was sent on 4 July.  Had it been arguable on the basis of that paragraph that by using the word “clincher” the Tribunal were intending to demonstrate a substantial reliance upon the evidential significance of that P45, we would have considerable sympathy with the arguments presented before us by the Respondents before the Industrial Tribunal.  But at the heart of the issues that we have had to consider, is essentially the proper construction of paragraph 2 which I have just quoted and the apparent place within the decision of the reference to the P45.

	Before referring to the Tribunal’s own judgment about that, we ourselves are driven to conclude that the Tribunal placed very little reliance upon on the P45 on the face of their decision because after the words “clincher”, they add the words “if there needed to be one” and the tenor of the whole conclusion of the Tribunal is not that the Respondents intended that employment would come to an end, of which that P45 would have been potent evidence, but on the contrary that all the circumstances which attributed no blame to the people such as Mr Webb or Mr Smith and Ms Cobham who were dealing with it, led to a termination of employment. In that context therefore, the intention of the employer represents a small part.  They use this phrase: “Mr Webb made certain decisions...which amounted to a dismissal against the backgrounds of the shambles.”

	The Tribunal go on to refer to the treatment by Mr Webb and the failure to give Mr Ross any work although he was number one, indicating a desire not to employ him, and this is very important language, it seems to us;  

“Mr Webb having that in mind, caused him to act in such a way that the Applicant was led to believe his employment was at an end.”

	 It was common ground before the Tribunal that that P45 was never sent, so they were not there referring to the P45 as to what could have led the Applicant to believe his employment was at an end.  The Tribunal go on to point out that there is an obligation on the Respondents to pay their  employees, particularly when there is work available, to take the initiative, to contact the Applicant, and it is not for the Applicant himself to take the initiative.  They use this phrase against that background as leading them to the inevitable view that there was a dismissal.  In those circumstances, it seems to us, that the use of the word “clincher” must be seen in the context of the following phrase, “if there needed to be one”.  As that is a very express condition and in the context in which it is said and in the way in which the rest of that paragraph is couched, we must come to the conclusion that it was a luxury.  It was as if they were saying, “if we had any doubt about all that, which we have not, there is also the P45.”  That is our putting in different words, what it seems to us the Tribunal was saying.

	When the Tribunal itself came to consider the argument, they say 

“we accept that, even if the sentence referring to the “clincher” were omitted from the paragraph, the decision on the facts would stand.  Evidence as to the dates of the sending of the P45 would have made no material difference to our deliberation on those facts.”  

They then go on to find effectively that the application does not come within subsection (d) “that it would be within the interests of justice to require a review.”

	The Tribunal is criticised for effectively permitting themselves to have a re-run of what was in their own minds by deciding that it would have made no difference without giving themselves, as it were, the opportunity to see by reviewing their own decision.  It is urged upon us that if we were to find that it was evidence of substance which may have made a difference, we would not be taken to be rejecting the Tribunal’s judgment as to what would have been in its own mind and in a sense, we agree with that proposition.  However, we bear in mind that the Tribunal must have been alive to the need to assess the weight to be attached in the overall scheme of things, to the evidence which was being sought to be adduced.  It seems to us that in perhaps a slightly subjective way, all the Tribunal was doing was assessing the new or further evidence to see whether in fact, even if it were admitted, it was sufficiently important evidence as to bear with it the possibility of making any difference.  What they were saying effectively was, “even if as evidence it were admitted, looking at all the facts of this case, we cannot see that it would make any difference, and that seems to us have been a proper view of the evidence, consistent with their own findings and indeed consistent with our own reading of their earlier findings.  

	It has been conceded, on behalf of the Respondents, that the effects of adducing the evidence of the later sending of the P45 would not be to inject an affirmative piece of new evidence into the case but effectively to neutralise any impact which the note and the apparent earlier date of sending the P45 originally had.  That seems to us to be very important because what the Tribunal said effectively is that, if you take the P45 out of their decision, it could have been no different, and that is all, at the very most, that the new evidence could have done.

	We understand and have sympathy with a Respondent who believes that because of something produced, however honourably, but at the very last minute of a hearing, a Tribunal got “the wrong end of the stick” and that thereafter the Respondents are prohibited from simply producing evidence which they have to show how long it was.  We understand that they may be left with a sense of grievance that the proceedings have “gone wrong”.  But it seems to us that two facts should be borne in mind: First of all,  Industrial Tribunals are intended to provide rapid and effective relief in particular employment situations in an informal and effective way outside the complexities and subtleties of the ordinary court procedures, with a power to review in the most limited circumstances.  There is no obligation to review, there is a wide discretion given to a Tribunal, not only in the exercise of their judgments on the grounds of an application for a review, but also as to whether to exercise that power at all.  The second matter is that it does seem to us, that fundamental to the decision of the Tribunal within their discretion was their judgment that this piece of evidence would make no difference and therefore, any sense of grievance should be thereby allayed in practice.  

	The Tribunal is given a wide power in terms of discretion.  It seems to us they exercised that discretion on material before them applying correct principles in an appropriate way.  To find within that any error of law, requiring us to find effectively that no reasonable Tribunal confronted with that application could have properly exercised its discretion in that way, is  beyond any of the matters that have been drawn to our attention before us today.  Whether we would have exercised our discretion in that way is a completely different matter and irrelevant. We find that there can be no criticism in law of the decision of the Industrial Tribunal to refuse to exercise its discretion to review their decision and this appeal is dismissed