Gentle & Ors v Perkins Group Ltd [1994] UKEAT 345_93_1705

EAT

Gentle & Ors v Perkins Group Ltd

[1994] UKEAT 345_93_1705 · 1994-05-17

JUDGE PEPPITT QC :

We have before us the preliminary hearings of appeals from two decisions of the Bedford and Bury St Edmunds Industrial Tribunal. By the first decision sent to the parties on 4 March 1993 the Tribunal dismissed the Appellants' complaints of unfair dismissal. Their case was that they had been unfairly selected for redundancy.

The second appeal is from a refusal of the Industrial Tribunal to review its decision in the light of further documents which were found to have been delivered anonymously to one of the Appellants, Mr Robinson, after the hearing. That decision was sent to the parties on 1 September 1993.

As to the first appeal we have decided to let the matter proceed to a full hearing. The grounds upon which the Respondents rely are set out in a Notice of Appeal dated 17 May 1994. That document has been substituted for the original Notice of Appeal and constitutes a significant amplification of it. We grant the Appellants leave to amend to substitute the document of 17 May 1994 as their revised grounds of appeal.

We should say something about the basis upon which we are allowing this matter to proceed to a full hearing. The new Notice of Appeal runs to some 16, closely type written pages. We are not satisfied that in those 16 pages there are to be found true allegations of error of law by the Tribunal but in the time available to us we are not able to satisfy ourselves to the contrary. In the circumstances, it seems to us that it would be wrong and unfair to the Appellants to dismiss their substantive appeal at the preliminary stage.

There are a large number of allegations contained in the new Notice of Appeal of perversity on the part of the Tribunal. We make no comment about the strength or otherwise of those allegations, but in order that they can be properly evaluated by the Tribunal which entertains this appeal, we can see no alternative to our accepting the Appellants' request that we make an Order inviting the Chairman to produce his Notes of the evidence.

Of the first appeal we say finally this. The spokesman for the Appellants was Mr Robinson. We have advised him that there are, in the new Notice of Appeal, a number of allegations which are plainly unsustainable and the document as a whole is prolix and to use a phrase which I used to him - somewhat indigestible. It is plain that the Appellants have had the assistance of a lawyer because the phrases which they use in their draft are lawyers' phrases. In the circumstances we have advised the Appellants that it would be in their interests for them to seek further advice with a view to pruning the document so that it can be presented before the appellate Tribunal in an understandable and manageable form. Finally we have advised them that in this case we consider that it would be in their interests at the final hearing that they should be represented by a lawyer. We stress that this is advice and no more. We have no power to require that that be done but the advice which we have given is, we believe, in the Appellants' best interests.

As to the second appeal, the Appellants' cases that the documents, some 74 in number delivered anonymously to Mr Robinson after the hearing, contain matters which were germane to the issue which the Tribunal had to decide. The matter was considered by the Industrial Tribunal over two days upon the Appellants' application for a review and at the conclusion of the hearing the Tribunal having considered the documents, decided that a review should not be granted. The Tribunal approached the question by reference to the case of Wileman v Minilec Engineering Ltd

[1988] IRLR 144

which specified the relevant test as being not whether the further documents would be relevant, but whether they would be likely to have an important influence on the case.

The Tribunal having considered the documents at some length expressed in paragraph 19 of its review decision their findings in these terms:

"We are satisfied that the proposed new evidence would not be likely to have an important influence on the case."

The decision went on to review some of the documents and the decision concluded at paragraph 20:

"We have discussed this at some length because, as I have set out in the original decision, it was not an easy case to decide. There were various matters which did not resolve themselves neatly, and left loose ends untied. The position, therefore, is that, whilst the documents would have some relevance, we are satisfied they would not be likely to have an important influence on the case."

We are satisfied that in the light of those extracts from the decision the Industrial Tribunal asked itself the right question and applied the right test to its consideration of whether the new documents should be admitted. Having reviewed them the Tribunal decided that they should not. We as an Appellate Tribunal cannot second guess the Tribunal's decision. We can only interfere if it was a decision which no Tribunal could have reached or if it was reached by the application of an incorrect test. We are not satisfied that either of those situations arose and accordingly the second of the Appellants' appeals will be dismissed at this stage.

We say, in conclusion, that we think it would be helpful if a transcript of our decision upon both matters should be made available for the Tribunal which ultimately hears the Appellants' first appeal.