Appeal No. UKEAT/0061/09/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 May 2009

Before
HIS HONOUR JUDGE HAND QC
MRS J M MATTHIAS
MR D NORMAN

MR R ANDORFUL	APPELLANT

RELIANCE SECURITY SERVICES LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MATHEW PURCHASE
(Appearing under the Bar Pro Bono Unit) 	
For the Respondent	MR ROBERT CATER
(Legal Representative)
Peninsula Business Services Ltd
Riverside
New Bailey Street
Manchester  M3 5PB	

SUMMARY
PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
New evidence on appeal
Disposal of appeal including remission

RACE DISCRIMINATION:  
Direct
Comparison

In the context of a case of direct race discrimination where fresh/new evidence has been admitted on direction after a Rule 3(10) hearing the EAT still needs to consider whether the admission of that evidence before it at the full hearing means there must be an error of law and the matter must be remitted for a rehearing.

HIS HONOUR JUDGE HAND QC
1.	This is an appeal by the Claimant, Richard Andorful, against the judgment of an Employment Tribunal, comprising an Employment Judge and two lay members sitting at Reading over three days in May 2008.  We shall refer to that Tribunal as the First Reading Tribunal.  The written judgment of the First Reading Tribunal was promulgated and sent to the parties on 2 July 2008.  By that judgment, the First Reading Tribunal dismissed all claims made by the Claimant against the Respondent, here and below, the Respondent being his employer, Reliance Security Services Ltd.  The Claimant was employed in a security role.  We shall refer to the parties as the Claimant and the Respondent.

2.	The claims made by the Claimant had been based on six different causes of action arising from six different statutory provisions.  There had been other claims but they had not survived the case management process of the Employment Tribunal.  

3.	The race discrimination claim itself was subdivided into five different issues in paragraph 1.1 of the First Reading Tribunal’s judgment at page 2.  The subdivision was as follows,

“1.1.1	He was suspended on 28 April 2007 but the Respondent did not suspend Mr Mowe in like circumstances;
  1.1.2	The company failed to uphold the Claimant’s grievance of 14 May 2007;
  1.1.3	The Respondent delayed in paying the Claimant his sick pay;
  1.1.4	The Respondent had failed to address the Claimant’s concerns as to the Check Point system (this is a fob based system which enables security staff to verify that they have checked a location at a time because a security pad will record the presence of their fob at the place and time):
  1.1.5	On 16 April 2007 Mr Robb threatened the Claimant with adverse consequences if he went off sick and when he was not well enough to work and in the last week of April 2007 Mr Robb pressurised the Claimant to return to work when still unwell;”

4.	The Claimant appealed to this Tribunal in respect of all six matters.  His Honour Judge Peter Clark took the view that there was no arguable error of law in respect of any of the matters when he considered the appeal under rule 3 on 2 October 2008.  

5.	After that, a differently constituted Employment Tribunal sitting in Reading, which we will call the Second Reading Tribunal, gave a reserved judgment, sent to the parties on 26 November 2008, in the case of a former colleague of the Claimant, a Mr Atiadevey.  That judgment was drawn to the attention of His Honour Judge McMullen QC at a hearing of this appeal at this Tribunal on 11 February 2009 held pursuant to Rule 3(10).  Whilst the learned judge agreed with His Honour Judge Clark as to five of the claims brought by the Claimant and consequently dismissed them, he took the view that there was a reasonably arguable case in respect of the claim of race discrimination, and accordingly this matter proceeded and now appears before us today.  

6.	His Honour Judge McMullen QC identified three grounds relative to the claim.  They were as follows:

i.	although the First Reading Tribunal had apparently accepted the evidence of a Mr Joshi that a man called Mr Mowe had been guilty of misconduct and had distinguished that case on the basis that it was less serious than that of the Claimant, it had not been explained why the Employment Tribunal attached no weight to the fact that any such incidents had been denied both in the Race Relations Act section 65 questionnaire and in the Respondent’s ET3 form;

ii.	 new evidence suggested that the case of Mr Mowe might not be much different to that of the Claimant; this new evidence took the form of records which were available to the Second Reading Tribunal but not the First Reading Tribunal and His Honour Judge McMullen QC regarded the new evidence as passing the tests or thresholds in Ladd v Marshall [1954] 1 WLR 1489 because it could not have been placed before the First Reading Tribunal: the Claimant had repeatedly requested the evidence but its existence had been denied.  His Honour Judge McMullen QC in the judgment that accompanied the orders he made under Rule 3(10) took the view at paragraph 8 that the documents should have been adduced at an earlier stage by the Respondent, saying:

“These documents should have been adduced at an earlier stage by the Respondent.  They are apparently credible, they could not have been obtained with reasonable diligence before.  This claimant has shown how diligent he was and so they will be extant before the division which hears this case.”

iii.	The other matters that influenced the learned judge appear at paragraph 9 of his judgment in the following terms:

“9.	The third issue is failure by the Tribunal to address the Respondent's different case. That is essentially a reasons appeal. Finally, no inference was drawn in relation to the questionnaire. It was jejune. It is reasonably arguable that the Tribunal has not, in its rather dismissive comment about the Respondent in paragraph 38 of its judgment, dealt with the direct case put in paragraph 1 in the Claimant's witness statement, that the Respondent should be taxed for its failure to reply timeously and in detail. These too will go to a full hearing.”

7.	The Employment Tribunal’s reference to the questionnaire at paragraph 38 of its decision is in the following terms:

“We would comment that we were surprised that the Respondent which has an HR department had no input into the response to the Race Relations questionnaire but was content to leave that to its consultants.” 

8.	The way in which Mr Purchase, who has appeared on behalf of the Claimant at this Tribunal, puts this matter is that there are really four grounds.  The first three I have identified, and the fourth, which is also referred to by His Honour Judge McMullen QC, could be encapsulated by saying that of the five allegations dealt with by the First Reading Tribunal at paragraph 1 of its judgment, as quoted above, only the first can be said to have been addressed at all by the Tribunal, and that inadequately, and the other four simply not addressed at all.  

9.	So, Mr Purchase, on behalf of the Claimant, puts forward four grounds of appeal.  He started his submissions however, at the invitation of this Tribunal, by addressing what can be called the new evidence point.  He also developed the other points that he had outlined but when Mr Cater, who has appeared on behalf of the Respondent, embarked on his submissions in response, again at the invitation of this Tribunal, we invited him to concentrate only on the new evidence point.  

10.	His Honour Judge McMullen QC’s decision that the evidence was to be presented to this Tribunal is dealt with at paragraph 8 of the order that he made.  This reads:

“The application to adduce fresh evidence as set out at paragraphs 34-42 of the Appellant’s skeleton argument is allowed.  The Respondent to have liberty to apply on paper within 14 days of the sealed date of this Order on notice to the other party to vary or discharge the Order in this paragraph and/or for consequential directions as to the hearing or disposal of the appeal.”

So the evidence is before the Tribunal.  

How is that decision by the learned judge to be addressed by this Tribunal?  It seems to us that there are three possibilities: either we are bound to find that this is important evidence because that is what His Honour Judge McMullen QC has already found; secondly, and alternatively, whilst we are not bound by what was decided by the learned judge on the rule 3(10) hearing, we ought to give serious weight to it; thirdly, the matter is completely open.

11.	Mr Purchase told us that his researches had not revealed any decided case as to the right approach of this Tribunal to the question of new or fresh evidence, already admitted at a previous stage of the appeal.  He pointed out that in the case of Photostatic Copiers (Southern) Ltd v Okuda and Japan Office Equipment Ltd [1995] IRLR 11 the matter appeared to have proceeded by concession at paragraphs 16 and 18 of the judgment of this Tribunal, in that case given by His Honour Judge Peppitt QC, that the admission of new evidence must mean a remission to the Tribunal.  In that case it was a remission to the same Tribunal.  But that apart, the authorities are silent as to how the Employment Appeal Tribunal should approach fresh evidence, when it has been admitted by a different division prior to the hearing of the substantive appeal.

12.	At first sight this might seem surprising but, on further reflection, we think the answer is clear enough as to not make it surprising that it has not been articulated before now.  So far as we know the practice of this Tribunal has always been that in cases where fresh evidence has emerged, which crosses the Ladd v Marshall threshold, it has always been open to this Tribunal to conclude that there has been an error of law, and consequently to remit the case, if it thought right to do so.  Is this the right approach?

13.	In order to answer we must turn to the judgment of the Court of Appeal in Ladd v Marshall.  It is a venerable authority and the so-called test is well known.  New evidence passes the threshold for reception on appeal if, with reasonable diligence, it could not have been obtained for use at trial, if it is of such a character that if given at first instance it would probably have had an important, albeit not necessarily decisive, influence on the outcome and if it is of such a character as is presumably to be believed and therefore potentially credible.

14.	In fact the case of Ladd v Marshall was about the sale of a bungalow.  The issue was how much money had been paid, the price being limited by the Building Materials and Housing Act 1945, which had been put in place at the start of the austerity period following the Second World War.  What the Appellant wished to do was to adduce further evidence from Mrs Marshall, who was undergoing divorce proceedings, which had reached the stage of a decree nisi, and who would say that the evidence that she had given to the judge at first instance was false.  Therefore the issue arose as to whether leave should be given for such new evidence to be adduced in the Court of Appeal and the case was only reported on that issue.  The three judgments are very short.  The appeal was dismissed because the evidence was not credible  

15.	At the start of his judgment, which was the main judgment of the court, Denning LJ at 
page 1491 said this:

“It is very rare that application is made to this court for a new trial on the ground that a witness has told a lie.  The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced.  To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled:  first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

16.	Denning LJ talked in terms of “the reception of fresh evidence or a new trial”.  He was plainly intending that his remarks would apply to situations where the new evidence or fresh evidence might be heard by the appellate court itself (presumably where the appeal was in the nature of a rehearing) given orally from the witness box; but, as well, the evidence, either received on paper in the form of a witness statement or an affidavit, would be an important consideration in whether or not there should be a new trial.  That the evidence in Ladd v Marshall might have been given to the Court of Appeal by Mrs Marshall, because the appeal would be a rehearing appeal, seems to be confirmed by the judgment of Hodson LJ at pages 1493 and possibly, although it is far from clear, in the judgment of Parker LJ at pages 1493 to 1494.

17.	The Employment Appeal Tribunal hears appeals by way of review (with some statutory exceptions).  Clearly the Employment Appeal Tribunal cannot hear the evidence as might have been an option for the Court of Appeal, on a re-hearing appeal.  How should it approach the question of fresh evidence, admitted as a result of a hearing pursuant to Rule 3(10)?  Where the evidence has been admitted, as having satisfied the Ladd v Marshall tests, can the Employment Appeal Tribunal simply order a new trial as the Court of Appeal might have done in Ladd v Marshall had it been more impressed by the new evidence?  

18.	It seems to us that, the fresh material having been admitted pursuant to the test in Ladd v Marshall, what the Employment Appeal Tribunal must do is to consider whether that material gives rise to an error of law enabling the Employment Appeal Tribunal to interfere and consequently either take the course of a remission, on whatever terms, to the Employment Tribunal, which is frequently the way appeals are disposed of, or reverse the decision below and substitute its own decision.  

19.	That being so, it seems to us that whilst a judge in making an order under rule 3(10) is making an order that cannot be challenged (except by further application, an opportunity the learned judge offered the Respondent, which opportunity was not taken up), the admission of the new evidence does not lead automatically to a remission to the Employment Tribunal.  Although the new evidence has been admitted, that admission is not conclusive as whether or not that new evidence establishes an error of law.  In other words, we have reached the conclusion that the fact that the learned judge, on the rule 3(10) hearing ordered the evidence to be admitted to this Tribunal, does not mean we are bound to conclude that the evidence gives rise to the inevitable decision that there has been an error of law.  We must scrutinise the material for ourselves in order to decide whether the fact that the evidence was not available at first instance could have had such a significant effect as to give rise to an error of law.  In reaching that conclusion we recognise that, the Ladd v Marshall threshold having been crossed, in many cases it will be inevitable that the case will have to be remitted.  This appeal is just such a case.

20.	In a clear and brief enunciation of principle, Mr Purchase submits that it would be procedurally unfair for the matter not to be remitted.  Secondly, he submits, an Employment Tribunal would have been bound to have been in error because it would be unable to take into account material considerations and material evidence.  Thirdly, he submits, that an Employment Tribunal would have been proceeding on a false premise.  All this we accept.  In particular, we accept Mr Purchase’s analysis that it could not be just, in either procedural or substantive terms, for a decision, which cannot have taken account of material considerations and must, therefore, have proceeded on a false premise, to be allowed to stand.
 
21.	In order to explain our reasoning we turn to the specific details of the new evidence.  It takes the form of records.  These are records of shift times and vehicle movements.  They were said not to exist by the Respondent.  That was said both at the First Reading Tribunal and before that; there were repeated requests by the Claimant for this information to be disclosed to him in the period before the hearing.  His Honour Judge McMullen QC seemed inclined to accept that this material might have been in the possession of the Respondent.  That is entirely disputed by Mr Cater, and it seems to us that it is a matter not only we cannot but also should not attempt any adjudication upon.  It is a matter that needs to be considered by the Employment Tribunal.  

22.	There are, however, other more compelling reasons for concluding that the case should be remitted.  This is material showing that Mr Mowe appears to have been absent from duty for significant periods of time.  A synopsis of its substance can be gathered from the Second Reading Tribunal’s factual analysis at page 7 of its judgment, in paragraph 8.2:

“8.2	The tribunal were taken in the course of the evidence to a number of the tracking reports. For example the tracker report for 6 September 2007 in relation to Mr Irfan (0104-107) shows that he went home (Botwell Lane, Hayes, Middlesex) between 2.51 pm and 5.16pm, a total of some 2 hours 25 minutes. Mr Irfan when asked about this thought initially this might have been because repairs were being carried out to his company vehicle by the RAC. When pressed on this point he was categoric that was when he was undertaking a BT Beat and that the repairs were carried out on another date. The Claimant took the tribunal to (C72) a Beat sheet for Mr Mowe, which shows a 4-hour break between 0100 and 0530 hours. The Respondent argued that Mr Mowe might have been attending at a building with a boarding up team or attending some other emergency. However there was no evidence to that effect and the document itself is clear evidence of a prolonged period of inactivity. Other Beats referred to by the Claimant show a 3 hour break for Mr Mowe (C70), a 4½ hour break (C72) , a 3 hour break (C79) a rid a 3 hour 20 minute break (C84).  Mr Ricky Murrell, another white officer, is recorded as taking a 3-hour break (C98). He provided a statement in support of Mr Atiadevey (C61), which stated “Mr Joshi (Operations) has checked my tracker reports and has seen myself and other members of the team go home but has never had any query to this effect and I was quite shocked that Mr Atiadevey was suspended on the same note". The tribunal is entirely satisfied that Mr Robb was not clear in his instructions to the security officers and supervisors.  There was no clear written policy setting out exactly what was expected. It is quite clear from the evidence that officers and supervisors went home in the course of their duties for prolonged breaks. The practice was tolerated and known of by the Respondent.”

The significance of the above is really in relation to Mr Mowe, although we have quoted the whole of the subparagraph for the sake of completeness; the material shows Mr Mowe apparently being absent from duty for significant periods.  

23.	The First Reading Tribunal’s conclusions in relation to this issue are to be found at paragraph 23 where they say,

“Mr Joshi we considered gave credible testimony.  As regards the Mr Mowe incident, Mr Joshi said that they were busy at the time but he did take action and gave him a verbal reprimand regarding his behaviour.”

That is the finding as to fact.  What appears in terms of analysis and conclusion is at paragraph 27 on page 8 of the Tribunal’s judgment, where there is the simple and single sentence:

“The Respondent did discipline Mr Mowe but his conduct was not as serious as that of the Claimant.”

24.	The First Reading Tribunal seems to have concluded that the incident was one of nodding off on duty.  There are two points made by Mr Purchase in relation to this.  Firstly, the new evidence shows that Mr Mowe’s case may not have been confined simply to falling asleep but that there were significant absences; and, secondly, it shows that Mr Robb, the person who suspended the Claimant in this case, knew that there was a practice of people absenting themselves during the course of their shift patterns.  So Mr Purchase submits this is significant material.  

25.	Mr Cater accepted that the first limb and the third limb of the thresholds or tests identified by Denning LJ in Ladd v Marshall were satisfied in this case.  The only significant issue therefore was as to whether this was important material that might have a bearing on the outcome of the case; putting it in terms of Denning LJ’s judgment that it was such as to:

“probably have an important influence on the result of the case, though it need not be decisive;”

26.	Mr Cater’s submission was that this case was not any different from that of the dismissed employee, Mr Atiadevey, whose case was heard by the Second Reading Tribunal, in the sense that the new evidence had made no difference to that case.  In the judgment relating to his case race discrimination was rejected.  It was rejected on the factual material, including the new evidence.  This was a case where the First Reading Tribunal had found there to be no race discrimination without this evidence.  In the indistinguishable case of Mr Atiadevey, submitted Mr Cater, the Second Reading Tribunal had found there to be no race discrimination, even though this evidence was adduced.  Therefore, the Third Employment Tribunal, if the case were to be remitted to a differently constituted Tribunal, or the First Reading Tribunal, if remitted to the same Tribunal, was bound to come to the same conclusion.  This was not important material.  It did not, on examination pass, the second limb of Ladd v Marshall.  No error of law arose, and therefore the case ought not to go back on that basis. In any event, said Mr Cater, there were significant differences between the two cases.  Here Mr Robb was alleged to be the discriminator.  In the Second Reading Case, (the Atiadevey case) it was said to be a Mr Du Ploy. 

27.	We cannot accept Mr Cater’s submission.  In our judgment, the First Reading Tribunal plainly took the view that there was no comparison to be made between the Claimant’s case and that of Mr Mowe on the basis that all that had happened in Mr Mowe’s case was that Mr Mowe had fallen asleep for which he had been properly reprimanded verbally by Mr Joshi.  It seems to us that cannot have been the right factual basis on which to decide the case.  

28.	The fact that in the Second Reading Tribunal’s judgment in the case of Mr Atiadevey, there was a finding that there was no race discrimination seems to us no guide as to what may be found in the entirely different case of Mr Andorful, the Claimant in this case.  We accept that the alleged discriminator, Mr Robb, was different to the alleged discriminator in the second case; that seems to us to argue in favour of a remission and not against it.  Mr Robb was the man who had allegedly condoned the practice of people taking breaks.  He had, therefore, the argument would go, turned a blind eye to others taking breaks; why had he not done the same in the case of Mr Andorful, a man of African origin?

29.	In our judgment, whilst the new evidence cannot not be regarded as conclusive, it nevertheless may have an important bearing on the outcome.  It was not available to the Tribunal.  Had it been a different decision might have been reached.  It would simply not be just to allow that decision to stand.  Accordingly an error of law arises and we will allow the appeal on that ground alone.  

30.	The question in our minds is what is the appropriate consequential order to make?  It is submitted by Mr Purchase that the matter should go to a differently constituted Tribunal.  We will now hear further submissions as to that, and in the light of them, consider whether it is necessary to consider Mr Cater’s response to the other points raised by Mr Purchase.  If we were to come to the conclusion that the matter should go back to a differently constituted Employment Tribunal, it would be not necessary, in our view, to reach any concluded decision in relation to the other matters raised by Mr Purchase.  They are matters that need not be argued further here if we direct the matter be remitted to a differently constituted Tribunal, with the further direction that the whole case was at large and was to start again without reference to any of the findings of the First Reading Tribunal.  

31.	Accordingly, we would like to hear submissions now as to what in relation to our decision on the first point, the fresh evidence point, is the appropriate consequential direction.

[submissions were then heard]

32.	We have reached the conclusion that this case ought to be remitted to a differently constituted Employment Tribunal with the further direction that the matter is to start completely afresh and that the Tribunal is not to be bound by any of the findings of fact made by what we have called the First Reading Tribunal in its judgment of 2 July 2008.  

33.	Our reasons are, firstly, this is material that bears on the credibility of the Claimant.  We did not deal with every aspect of Mr Purchase’s submissions, and perhaps we should have said that this was important material because the Tribunal had plainly taken an adverse view about Mr Andorful’s credibility and the new material shows him to be potentially credible.  He has been suggesting that such material would exist and would vindicate his point of view.  He has been proved correct as to the former; as to the latter, that will be for the new Tribunal to decide.  We think it better that the decision is made by a Tribunal that has not already formed an adverse view as to credibility.  It is worth pointing out that at paragraph 28 of the First Reading Tribunal’s judgment at page 8, a view as to the Claimant was expressed thus:

“He has merely outlined a farrago of unsubstantiated, perceived grievances which do not bear scrutiny.”

In those circumstances, it would seem to us desirable that an entirely fresh Tribunal should look at the case.  

34.	A second and very important reason has been helpfully explained to us by Mr Cater, namely that the Employment judge who presided at the First Reading Tribunal has indicated, for a variety of reasons not known to us, that he would not be prepared to hear any more cases relating to Reliance Security Services Ltd.  We also accept Mr Purchase’s point that a long time has elapsed, and that in terms of proportionality this is a matter which, on remission, may not take as long as the original three days and that therefore, if it is to go back, not a great deal of time would be saved by going back to the same Tribunal.

35.	For all those reasons, we will direct that this matter be remitted to a differently constituted Employment Tribunal, with a further direction that the matter is at large, the parties are at liberty to call whatever evidence they wish and the findings of fact of the previous Tribunal are not binding.