Appeal No. EAT/0310/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 June 2001

Before
THE HONOURABLE MR JUSTICE NELSON
MR D J HODGKINS CB
MS B SWITZER

MR JOHN TOOLEY	APPELLANT

MISS DEBORAH BRIMELOW	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	SALLY ROBERTSON
(Of Counsel)
Instructed By:
Messrs Gales
Solicitors
512 Wimborne Road
Bournemouth
Dorset, BH9 2ET	
For the Respondent	ADAM VAITILINGHAM
(Of Counsel)
Instructed By:
Messrs Woolcombe Beer Watts
Solicitors
Church House
Queen Street
Newton Abbot
Devon, TQ12 2QP	

MR JUSTICE NELSON

1.	This is an appeal against the refusal of the Employment Tribunal sitting at Exeter to review the decision that it had made on 14 October 1999 finding that the Applicant had successfully persuaded them that sexual discrimination had taken place by her employer.

2.	The application for a review of that decision was dealt with by the Chairman alone on 19 November 1999, sitting by himself under the provisions of Rule 11 (5) of the Rules of Procedure Regulations 1993.  He determined that the application for a review must fail because it had no reasonable prospect of success.

3.	The nature of the case which had been before the Tribunal at Exeter and the subject of its decision of 14 October 1999 was, as I have indicated, a sex discrimination case which involved a complete conflict of evidence.  The assertion by the Respondent (then Applicant) was that she had been touched on her breasts by her employer.  The Respondent was a student employed as a temporary barmaid and the Appellant was the Publican who owned and ran the hotel in question at Teignmouth.

4.	That the Tribunal found it a difficult case to resolve on this conflict of evidence was demonstrated by various passages of the extended reasons of the main decision.  They said that:

7.	“We have not found this an easy case to decide”

5.	They ultimately concluded that:

12.	“Only one of these two stories can be right.  We have weighed the evidence carefully as we have said.  Having done so we say we find Miss Brimelow’s evidence more compelling than that of Mr Tooley.  However, Mr King provides an alibi for Mr Tooley.

13.	We find that Mr Brimelow’s evidence is the most compelling of all the relevant witnesses that we have heard.  We do not believe that it is remotely credible that the Applicant should enact this story for her father.”

They went on to add that they did not find Mr King’s evidence credible in his demeanour.

6.	It can be noted from those passages that the Tribunal placed particular reliance upon the evidence of the Respondent’s father, Mr Brimelow, whose evidence they found the most compelling of all the relevant witnesses they had heard.

7.	Before the hearing the parties had agreed to disclose witness statements and agree a bundle for the Tribunal hearing.  No witness statement from Mr Brimelow was produced at any time.  Indeed the Appellant did not know before the Respondent herself gave evidence that it was alleged that she had spoken to her father or even that he had been at the house when she returned home after the incident of which she complained.

8.	The Appellant’s then representative was taken by surprise, it is submitted, by the calling of the father and did not cross-examine him.  She did not know then, nor had it been relevant for her to have made enquiries about the matter, not knowing that the witness would be called to give evidence, that no statement had been taken from him by the police and that no reference had been made by the Respondent to speaking to her father in her statement to the police.  In fact the Tribunal had refused the Respondent’s own request for an adjournment for the police statements to be obtained.  The Respondent had not even got her own statement at the time of the hearing.
9.	No application to adjourn the matter, after Mr Brimelow was called to give evidence unexpectedly, was made on behalf of the Appellant and the Tribunal found that the Respondent’s case was established.

10.	The application for review was made by the Appellant and the Chairman rejected that under Rule 11 (5) on the grounds, as I have indicated, that it had no reasonable prospect of success.  The basis upon which the review was sought was twofold; firstly that there was new evidence available in the light of the evidence of the police that no statement had been made to them by Mr Brimelow; and secondly on the basis that it was in the interests of justice that there should be a review.

11.	The appeal, as permitted to a full hearing by Mr Justice Lindsay, alleges three essential errors of law; firstly that no Chairman alone could or should have considered the review himself and concluded by himself that the application had no reasonable prospect of success; secondly that his decision was not tenable and he made errors of law in reaching it; and thirdly he did not consider the interests of justice point properly.

12.	The application for a review has today been restricted to that of the interests of justice under Rule 11 (1) (e), the earlier ground of new evidence under Rule (11) (1) (d) having been abandoned today.

13.	We are satisfied that Rule (11) (5) gives the Chairman a very valuable power to act as a filter which can exclude those plain and obvious cases which have no reasonable prospect of success, that that power is necessary and should not be unduly restricted.  Indeed the only restriction which can be placed upon it is that the Chairman must exercise that power judicially.

14.	The Appellant submits that in circumstances such as these, where a factual dispute and a closely contested one at that, is at the heart of the matter, any decision on a review must be decided by the whole fact-finding body, the ‘Industrial Jury’ as it has been called.

15.	She relies upon the case of Hancock v Middleton [1982] ICR 416 and in particular page 419 where it is said that:

“It seems to us that there is material for a Tribunal to investigate to decide whether or not the matter should be reheard or whatever other order should be made.”

That passage is relied on as indicating that, where there is material which should be investigated, (and that applies to a strong factual dispute) it is appropriate and proper for the matter to go back to the full Tribunal for hearing, rather than be dealt with by the Chairman alone.

16.	The Respondent submits that the Chairman was acting judicially in deciding the matter himself and that to find to the contrary would be to break new, unwarranted ground.  The case of Hancock is, on its own facts, entirely, as the editors of Harveys appear to feel in the passage where they deal with it.  It should not be used to limit the powers under 11 (5), which are valuable and necessary powers.

17.	We have to consider whether there is material for the Tribunal to investigate so related to the facts of the case that it should be investigated by the full panel.  The Appellant alleges that the new material, which needed to be considered, was the fact that Mr Brimelow had made no statement to the police whatever and also that the Respondent had made no mention of seeing or speaking to her father in her police statement.

18.	The Appellant’s failure to cross-examine or ask for an adjournment was properly described, so the Appellant contends, as the sort of procedural mishap which could not be described as a simple error on the part of that representative, given the fact that the calling of Mr Brimelow was a surprise to all.  It had not even been announced at the start of the hearing and no statement by him was ever produced at any stage before or after he gave evidence.

19.	The Appellant submits that the Tribunal Chairman did not consider properly the agreement beforehand, as to the conduct of the proceedings and exchange of witness statements and hence did not properly consider the surprise element in the effect on the Appellant.  This had to be considered when assessing the overall interests of justice and the need to look at the facts carefully.

20.	More particularly, the Chairman in considering the matter by himself was inevitably considering matters which went to the heart of the factual dispute, into the resolution of which each member had played an important role.  Any member could have felt that material which might have shaken the evidence of Mr Brimelow, which they found so compelling, could have been important and justified a review.

21.	We have considered the arguments of both the Appellant and the Respondent.  We do not accept that to say that the whole Tribunal should have considered the application to review is breaking new ground.  It is simply a decision on the facts of a particular case.  Here there was a closely fought contest on the facts which the Tribunal expressly found difficult to resolve.

22.	A seemingly minor point in any case in one member’s eyes may be regarded as more significant than to another and may cause a desire to review the matter and persuade other members of the view that that member holds.
23.	The key here, in our view, is the fact that the weight to be attached to the new material is difficult for anyone, save the original Tribunal to determine.  It is much better determined by them than us and should have been determined by the full Tribunal, rather than by the Chairman alone, given that it went to the very heart of the decision that was made, on findings in which all were each actively involved.

24.	We do not consider it appropriate on these facts to consider the other matters set before us in detail, simply because it is as I have already indicated, an appropriate decision for the whole Tribunal to deal with and not for us.  We simply remit the matter for consideration of the review to the full Tribunal.  In that sense this appeal is allowed.