Belham v Freemans Plc [1994] UKEAT 640_94_1210

EAT

Belham v Freemans Plc

[1994] UKEAT 640_94_1210 · 1994-10-12

JUDGE HULL QC:

This is a serious and rather distressing matter from the point of view of all concerned; Mr Belham was a longstanding employee of the Respondents, who are a well-known Mail Order firm, at their Peterborough warehouse. He was first employed in 1976. In 1993 there was a complaint by a Mrs K (as she was referred to) that Mr Belham had been guilty of behaviour which harassed her. It was quite a serious complaint; indeed, there was a complaint to the police, which however resulted in no prosecution. It became the duty of the Company carry out an enquiry.

There was a Disciplinary Hearing on the 23rd July 1993 by a Mrs Sharp, a Manager and she concluded that the complaints were made out. The decision was taken to dismiss Mr Belham and he applied on the 17th September to the Industrial Tribunal, complaining that he had been unfairly dismissed. He complained of a substantial number of matters.

He had appealed pending his Application to the Tribunal and on the 21st, 22nd and 29th September, the Appeal was heard by Mr Stringer, a Director of the firm. Mr Stringer took the matter very seriously indeed and it being suggested, and he indeed thinking there might well be something in those suggestions that there were imperfections, irregularities in the first hearing, he embarked on a complete re-hearing. As is clear from the dates I mentioned, he took three days to carry out that re-hearing. His conclusion was, not treating it as an appeal at all but as a re-hearing, adverse to Mr Belham whose Application to the Industrial Tribunal therefore continued.

At the Industrial Tribunal, Mr Belham was represented and the Tribunal, which sat at Leicester under the chairmanship of Mr Bellis, took again no less than three days to try the case. They promulgated their decision on 26th April and on the 18th May, a letter was written on behalf of Mr Belham requesting a review of the decision. The chairman considered that request and rejected it on the 26th May. On the 30th June there was the Notice of Appeal with which we are dealing today. Now there are matters to notice here which are very important, the first is that there is no Appeal against the original decision of the Industrial Tribunal, the Appeal is against the refusal by the chairman on the 26th May to review the decision of the Tribunal reached, as I say, with such considerable labour in April. There are various complaints made about the behaviour of the Tribunal and the way in which they conducted their hearing, which as a matter of law might very well found an Appeal, against the original decision, we say no more than that. But there is no appeal against the decision. Instead, for reasons which we have not inquired into, and which are entirely the responsibility of the Applicant and his advisers, the Appeal is against the refusal of a review.

Now the jurisdiction of an Industrial Tribunal to review its own decision is set out in Rule 11 and I read from that. The grounds are:

"(a) the decision was wrongly made as a result of an error by Tribunal staff; (b) a party did not receive notice of the proceedings leading to the decision; (c) the decision was made in the absence of a party; (d) new evidence has become available since the Hearing."

None of those matters relate to this and so the only ground is:

"(e) the interest of justice require such a review"

Now it must be remembered that an Application for review is made to the Tribunal itself. It is no good just saying to the chairman or members of the Tribunal, "An appeal against your decision could well succeed." In this case the Tribunal would be obliged to say, "Well then, go ahead and appeal." It is a matter of discretion for the Tribunal whether it should review its decision and of course, that discretion can only be exercised if the Tribunal is satisfied that there is at any rate a clear case for saying that they may have made an error of some sort or other. No Tribunal exercising their discretion could allow a review when satisfied their decision appeared to be entirely correct and regular.

I also cite from what is said in Harvey on Industrial Relations and Employment Law, Volume 4 Section T paragraph [1139] concerning this subject:

"Cases in which the only application is made under para (e) fall into two broad categories: those in which there has been a `procedural mishap' of one sort or another, and those in which the tribunal's decision has been undermined by events occurring shortly thereafter."

That latter phrase does not apply. Various examples of a mishap are given where the Tribunal may have made an mistake, it may have failed to allow somebody to address it or something of that sort. Now having said that, we look to see what the application for review was founded on. The Tribunal found, as I said, that the dismissal was fair and there were a number of criticisms of that which were made by the Applicant when he applied to the Tribunal to review its own decision. There was a letter of the 18th May 1994 which included all those criticisms and on those grounds the Tribunal was invited to review its decision. I am not going to go through all of them. Two of them in particular are underlined today. One of the allegations made to the Tribunal was that the Applicant was not made properly aware of the nature of the allegations against him, and in particular the statements that had been made against him. And that, in the view of the Tribunal, was given the lie by the fact the Trade Union representative, when he addressed Mr Stringer on the Appeal, confirmed that there was no question of his client being under any misapprehension about the evidence, this at the top of page 7 of our bundle:

"at a subsequent appeal Mr Doherty indicated that he had no complaint whatsoever about the conduct of the disciplinary hearing."

That is complained of in Mr Belham's annotation. He says, "correct, but Mr Doherty also confirmed that the disciplinary allegations were not stated. His `no complaint' position must therefore be without substance." That appears to be a mistake. If the representative was satisfied that he had no complaint about that matter it means that it will not avail the Applicant at this late stage to complain about it.

There were also complaints which I should mention which were raised today by Mr Dawson. He said, among other things that it is the employer's duty to ensure that any allegation is understood. Of course the employer must make quite clear, to the person who is being disciplined, the nature of the complaint, so that he can answer it. But the trade union representative had assured Mr Stringer that there was no complaint about the disciplinary hearing and in those circumstance the Tribunal were entitled to take the view of it, which they did.

Another matter which was complained of was, that the cross-examination of a witness, Mrs Sharp (the lady who conducted the first hearing) was foreclosed. And what the chairman said about that was that Mrs Sharp's evidence was not foreclosed. There was no refusal to recall Mrs Sharp nor was there any request for an adjournment. And he said in connection with another witness that a request for a witness order for Mr Lambert was not pressed. So the chairman is saying "You are mistaken, this did not happen." And in the nature of things, if that is what the chairman says when he is invited on behalf of the Tribunal to review their Decision, what else can he do? It is in the nature of the jurisdiction to review that the chairman must rely on his own understanding and recollection of what has passed to see whether in his judicial view there should be a review.

Then there is another matter, and here the point is made with great force by Mr Dawson in two places. The Tribunal, giving its decision, observed that Mr Stringer, the director, had interviewed Mrs K, the Complainant, in the presence of the Applicant and his representative. That was clearly an important matter. And that, Mr Belham said, was an error. "This did not occur." "It is contrary to the evidence given by Mr Stringer."

What the chairman said about that is as follows:

"I cannot remember whether the Applicant and his representative were present"

he means of course when Mrs K was being interviewed:

"but the crucial factor is that Mrs K was interviewed."

Now that of course, if this were an Appeal from the substantive Decision, might, if we found that Mr Stringer had not said that Mr Belham and his representative were present, be a matter which in the light of all the evidence would appear to us to be of importance; an error in understanding the evidence which could be regarded as a matter of law. But the chairman said, and of course this was some time after the decision, that he could not remember whether the Applicant or his representative was present. But to him, the chairman, and no doubt to his members too, the crucial factor was that Mrs K was interviewed by the director, who had spent (as I say) three days in carrying out the enquiry. Clearly, if it had been said that the Applicant had no knowledge of what Mrs K said or anything of that sort, that would be a quite different complaint, but what is alleged is that the chairman was wrong in saying that the Applicant and his representative were present when Mrs K when interviewed. And the Chairman says:

"that is not important, the crucial factor is that Mrs K was interviewed."

So the chairman did not regard that as any ground for review. The matter had been regularly conducted, the director had seen the witnesses, of course it is not a rule of law that he has to see all the witnesses in the presence of the employee concerned, he may or may not do so. And in the view of the chairman the crucial factor was that Mrs K was interviewed by Mr Stringer.

With regard to most of the other complaints (and Mr Dawson has not been through all those, which were in effect addressed to the chairman) the chairman simply said they were not true or else that the Tribunal had decided those matters against the Applicant. So on all those grounds, having considered the matter, the chairman rejected the Application for review. And one has to remember therefore that he was, on the face of it, doing what the Tribunal has to do if an Application for review is made to it. He was not saying, of course, whether an Appeal might succeed against the decision, but saying whether it was made to appear to the Tribunal itself, to the chairman in particular, that the interests of justice required a review. The application is calling on the Tribunal itself:

"You must see that you are wrong here, there has been a mishap here and you should put matters right by holding a review."

Obviously, unless the Tribunal does conclude that there has been a mishap, that it has made a mistake of some sort, it has no possible jurisdiction to grant a review. It could not judicially say, "well we think that we were completely right, but nonetheless it is suggested to us that we may not have been right and we are therefore going to grant a review." That is not a way in which a judicial body can behave, no judge can behave in that way, no Chairman of Tribunals can behave in that way.

This chairman was satisfied there had been no mishap, and therefore he had no possible course in law but to reject the Application which was made to him. As I say, it might have been a very different matter if there had been an appeal against the decision itself but then it would not have been for the chairman to say whether he thought there had been a mistake; it would have been for this Employment Appeal Tribunal to say whether they thought there had been an error or errors of law and whether those matters should be corrected by entertaining and allowing an appeal. As it is, this chairman appears to us to have dealt with the matter in the only way which was open to him. His Tribunal had accepted the good faith and truthfulness of the witnesses whom they had heard, Mr Stringer and Mrs Sharp. In those circumstances, he took the only course that he could in refusing the review. And in those circumstances, since there is no error of law shown, indeed any other course would have been an error of law on the part of the chairman, we have no alternative but to dismiss the Appeal.