Jackson v Burnley College Plc [1995] UKEAT 36_95_0311

EAT
Jackson v Burnley College Plc
[1995] UKEAT 36_95_0311 · 1995-11-03
MR JUSTICE MUMMERY (PRESIDENT): There are two matters before the Tribunal arising out of the dispute between Mr Jackson and his former employers, Burnley College PLC.The dispute arose in these circumstances: On 9th November 1993 Mr David Jackson presented to the Industrial Tribunal a complaint of unfair dismissal from his position as a lecturer on General Art and Design Course at Burnley College for whom he had worked since September 1972.His complaint was that he had been suspended in July 1992 and, following a disciplinary hearing and an appeal hearing, he had been dismissed. He gave details in his complaint of the unfairness of his dismissal and the procedural flaws in the way in which his dismissal was made.The case was contested by Burnley College who responded that Mr Jackson was dismissed for gross misconduct and that dismissal was within the range of reasonable responses of a reasonable employer. They gave details of his employment, of the circumstances in which he was suspended, namely, on suspicion that he had personally completed some student survey forms, which form part of the course review and evaluation procedures. They also gave details of the various procedures laid down for disciplinary and dismissal matters and contended they had been properly followed by the College.Those were the broad issues before the Industrial Tribunal, which heard the case in Manchester over a period of three days, 10th and 11th August 1994 and 17th October 1994.When Mr Jackson made his complaint, he informed the Tribunal that he was represented by Catherine Carpenter of the Kent Law Clinic, Eliot College, in the University of Kent. It appears that he was represented by Mr Horren at the hearing before the Industrial Tribunal. The College was legally represented.At the hearing, two witnesses were called to give evidence on behalf of Mr Jackson. Mr Lomax, a lecturer, and a Mr O'Hagan, a governor at the time of the dismissal.The Tribunal noted in paragraph 2 of their extended reasons, sent to the parties on 10th November 1994, that Mr Jackson "himself did not give evidence to the Tribunal."In the extended reasons the Tribunal explained in twelve pages why they had reached the unanimous decision that Mr Jackson was fairly dismissed.On 14th November 1994 Mr Jackson applied for a review of the decision. That was dealt with by the Chairman in his decision notified with reasons on 9th December 1994.In the reasons the Chairman explained how, at the hearing in August and in October, the Tribunal was presented with several hundred pages of documents over a period of three days. He also referred to the fact that Mr Jackson had not given evidence to the Tribunal.He was now asking for a re-hearing. The Chairman pointed out that a further hearing, by way of review, could only be granted by a Tribunal on limited grounds under the 1993 Rules of Procedure. The Tribunal may grant a review on the application of a party or of its own motion on four grounds. The only two that would be relevant to Mr Jackson's case are the grounds in (d) and (e) of Rule 11(1).:
"(d) 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 of or foreseen at the time of the hearing; or (e) the interests of justice require a review."
Mr Jackson's ground for seeking a review was that there was evidence proving his innocence based on expert advice and proofs of evidence in the bundles. The interests of justice required a review. The Chairman disagreed. He said:

"Nothing went radically wrong in the tribunal proceedings ..."

The applicant had chosen not to give evidence. The public interest required finality in litigation. He stated correctly that it was not for the Industrial Tribunal, in an unfair dismissal case for misconduct, to determine whether the dismissed employee was innocent or guilty.He concluded that there was no reasonable prospect of the review succeeding, and refused to grant the application.Mr Jackson did not serve a Notice of Appeal until 12th January 1995, though the Notice of Appeal is dated 22nd December 1994.The appeal was out of time, in so far as it was an appeal against the original decision which was sent out to the parties on 10th November 1994. It was within time for appealing against the refusal to grant an application for a review. In correspondence with this Tribunal, Mr Jackson clarified that he wished to appeal against both the substantive decision and the review decision. He was asked to provide an explantation for his delay in appealing against the substantive decision. He explained to the Registrar in a letter of 1st February 1995 that, when he received a copy of the full reasons for the substantive decision, three pages containing information about how and when to appeal were missing from the documents sent to him. He was only informed about the process of review by a friend. He was informed by the Kent Law Clinic of the deadline for a review. Because errors contained in the decision document on the substantive decision were so extensive and obvious, he thought that the review would reasonably take account of all those and the situation would be rectified. He was astonished that that did not happen on his application for a review. Only then did he set about bringing an appeal. He added that the errors contained in the decision were so extensive that he felt it was necessary to obtain the file of documents that were before the Industrial Tribunal from the Kent Law Clinic and to make as full an explanation as possible. That took him several days.Since sending in his appeal and the documents that support it, he has forwarded additional documents.The Registrar considered the submissions of Mr Jackson and also considered the grounds on which the solicitors for the College objected to an extension of time. They explained in a letter of 23rd March 1995 that they did not accept that Mr Jackson was unaware of the time limits. In fact, they did not think he was claiming to be ignorant of the time limits. They pointed out that he had been discussing matters with advisors in relation to an application for review. He was advised of time limits regarding such an application. He confirmed that he formed the intention to appeal against the Industrial Tribunal decision upon receipt of the written decision refusing his application for a review. That was sent on 9th December 1994, well within the time for appealing the original decision. The several days he spent on obtaining files of documents and so on, would still have left him time to lodge an appeal within the 42 day time limit.They submit that Mr Jackson was aware of the time limit, and he has not provided any good excuse for failing to comply with it.These considerations persuaded the Registrar to refuse the extension of time requested. An order was made to the effect on 4th May 1995.On 3rd June 1995, Mr Jackson informed the Appeal Tribunal that he wished to appeal against that order.The matters before us are these: firstly, the appeal against the refusal of the extension of time; and secondly, a preliminary hearing of the appeal against the refusal of the review.We have heard both together. We have had detailed written submissions from Mr Jackson, including many pages of documents. During the hearing he has provided, in addition to the material we already had, copies of the transcripts of the disciplinary hearings held by the College. One was an incomplete transcript produced by the College for use at the Industrial Tribunal hearing. The others are what he says are complete transcripts which he has had made from the original master tape records of the hearing. They show, he submits, that the College `doctored' the original transcripts and deprived the Tribunal of material which should otherwise have been available to them at the hearing. He has also produced examples of the survey forms, which were the basis of the complaint against him. He has referred to a recent letter which he received earlier this year, in response to discussions with a body called the "Responsive College Unit Limited" setting out their views about student surveys and the problems involved in conducting them.In addition to all that, in the papers originally submitted Mr Jackson has provided with a detailed affidavit from himself and a short affidavit from Dr Brian Godden. He has provided a bundle of documents in support of an application on the review appeal to adduce fresh evidence. The fresh evidence consists of statements of a number of witnesses and members of staff, as well as the full transcript of the College hearing, the College principal's newsletter, and the statement of Dr Godden. He also wishes to adduce, as fresh evidence, other documents which he has sent to the Tribunal.In the light of all that material, we have reached the following conclusions.First, on the appeal from the Registrar, refusing an extension of time we have reached the conclusion that Mr Jackson had failed both in his written submissions and in his oral submissions, to provide a good excuse for failing to comply with the 42 day time limit for appealing. That time limit ran from the date when the extended reasons were sent out, 10th November 1994. The fact that Mr Jackson was pursuing an application for a review, of which he was notified of the result by the letter from the Chairman dated 9th December 1994, does not excuse the failure to comply with the time limit. Even after he knew the result of the review, he had time in which to appeal. The further delay which occurred, as a result, he says, of having to do work on the case, get documents back, and as a result also of him not being informed about the time limits, is not a good excuse. If a person does not know of time limits for doing a specific act, it is his duty to make the necessary enquiries to find out. It is not enough to say, "I did not know" or, "I was not informed" or "I was doing something else". The Registrar reached the right decision. We therefore dismiss the appeal against her decision. This means that it is now too late for Mr Jackson to appeal against the original decision that he was fairly dismissed.The second matter is the application for leave to adduce further evidence. It is necessary to deal with that before deciding whether there is an arguable point on this appeal. If we were satisfied that there is new evidence here which should be allowed on the appeal that would influence our decision whether to allow the review appeal to go forward to a full hearing.We have looked at the sort of evidence that Mr Jackson wishes to bring. We have seen in his thirteen page skeleton argument the way in which he wishes to use this evidence on the appeal.His case is that he has fresh evidence showing that witnesses for Burnley College lied to the Tribunal; that no reasonable investigation had been carried out by the Tribunal; that College witnesses had lied in evidence about the investigation; that Counsel for the College lied to the Tribunal in his submissions; that the College managers lied about the surveys and brought a perverse charge against him; that there was deliberate falsification of evidence in relation to the transcript of the disciplinary hearing before the College; that the full transcript he has obtained of that hearing had been withheld by the College from the Tribunal; and, that evidence unrelated to any charge against Mr Jackson was brought at the hearing against him, and evidence of those matters was withheld from the Industrial Tribunal.That is an outline of the most serious contentions. Other contentions relate to the involvement of the governors who heard the disciplinary hearing, their power and involvement in the case, and to various other matters which show, in Mr Jackson's view, that the College's case against him was severely flawed. He has gone into some detail about the sixty-seven errors of fact, which he says appear in the extended reasons of the Industrial Tribunal. His skeleton argument also refers to no less than fifty-six procedural errors which he summarises.It is clear to us that Mr Jackson feels very strongly that he has been unfairly treated in a number of ways. He was not fairly treated by his employers in their decision to dismiss him or in the procedures that they followed before that decision. He strongly feels that he did not get a right result from the Industrial Tribunal.There are limits on our powers. We cannot interfere with decisions of an Industrial Tribunal on the grounds that the appellant is aggrieved by them. We can only exercise powers on an appeal if it is established that there is a point of law, if it can be shown that there is error in the way in which the Tribunal interpreted or applied the law or that there is an error in the procedure, which the Tribunal followed. The purpose of the preliminary hearing of the review appeal is to discover what is not apparent from the Notice of Appeal, whether there is in fact an arguable error of law. The conclusions we have reached are these: Firstly, that we do not grant leave to adduce the evidence, because it does not satisfy the legal requirements for adducing evidence on an appeal. As Mr Jackson has shown, he appreciates the rule laid down in well-known case of Ladd v Marshall concerning evidence on appeals. That evidence is only admissible on an appeal if it satisfies certain conditions. One of those conditions is that it must be shown that that evidence could not have been obtained by the use of reasonable efforts for use at the Tribunal. Evidence may be obtained for use at a Tribunal in a number of ways; by discovery from the other side: for example, in relation to Mr Jackson's complaints about the incomplete transcript of the disciplinary hearing, it was open to him and his advisers to press for the full transcript. Mr Jackson was there when the disciplinary hearing took place. He should know whether a transcript provided was complete or incomplete. The College could be requested to provide a full transcript. If they failed to provide a good excuse for not doing so, the powers of the Tribunal to order discovery of documents could be invoked.Similarly, in relation to oral evidence from witnesses, such as students and other members of the staff, they could be approached to provide evidence for Mr Jackson at the hearing. If they were not willing to co-operate, the Tribunal's jurisdiction to make orders compelling witnesses to attend to give relevant evidence could be invoked.We have been unable to find anything in this new evidence, as Mr Jackson describes it, which satisfies the requirement that it was not obtainable by the use of reasonable efforts for use at the hearing in August and October 1994. It will be observed from the dates that Mr Jackson had been suspended as along ago as July 1992. Over two years passed between the date when the College notified him of their suspicions in relation to the students' survey forms, and the date when the Industrial Tribunal reviewed the whole question of the unfairness of his dismissal.On the review appeal therefore, we must look at it only on the basis of the reasons given by the Chairman in refusing a review. If we are refusing leave for the new evidence, we are not entitled to look at that to decide whether there should be a full hearing of the review appeal. We have decided that Mr Jackson has failed to show an arguable error of law on the part of the Tribunal Chairman in refusing a review.As is apparent from Rule 11 of the Rules of Procedure of Industrial Tribunals, the Tribunal Chairman has a discretion in these matters. There is power to grant a review on certain grounds. There is a discretion in the Chairman to decide whether or not to grant an application for a review on those grounds. He came to the conclusion that the review application should be refused, because there was no reasonable prospect of it succeeding. There was no reasonable prospect of it succeeding because no new evidence was provided which could satisfy Rule 11(1)(d) which is couched in similar terms to the requirement of new evidence on an appeal. It has to be shown that the evidence had become available after the hearing, and that its existence could not have been reasonably known of or foreseen at the time of the hearing. In addition, the Chairman was, in our view, entitled to take into account, in coming to his decision, that the interests of justice did not require a review. The fact that Mr Jackson had chosen not to give evidence at the hearing, is one of the most surprising features of this whole case. It is virtually unheard of for a person complaining of unfair dismissal, discrimination or any other wrong over which Industrial Tribunals have jurisdiction not to give evidence of the matters they complain about. Particularly so when the grounds on which they have been dismissed, or treated in some other way which they say is unlawful, arise from alleged misconduct. We have asked Mr Jackson at this hearing why he did not give evidence. He has not provided a satisfactory explanation.In those circumstances the Chairman was entitled to say twice in his reasons for refusing to grant the application for a review, that Mr Jackson had not given evidence, and that there was a public interest in seeing that matters were brought to close.It was Mr Jackson's duty, when he fought the case in August and October 1994, to bring before the Tribunal everything that he could in support of his claim for unfair dismissal. As the Chairman said, the task of the Industrial Tribunal on that hearing was a limited one. It was not to determine whether he was innocent or guilty of the conduct of which the College complained. It was to determine whether what they had done was reasonable in the circumstances, whether they had established a conduct reason for dismissing him and whether, as a reasonable employer, it was within the permissable range of options to dismiss him. The Tribunal made a decision on that. They gave detailed reasons. They made detailed findings of fact. They came to the conclusion that a conduct reason was established. They came to the conclusion that the College genuinely believed that Mr Jackson had committed the misconduct alleged in relation to the students' survey forms. The Tribunal found that there were reasonable grounds for that belief and they referred in detail to what had happened in the disciplinary hearings and internal appeal hearings. The Tribunal also considered and concluded that the investigation which was carried out by the College, prior to the decision to dismiss was a reasonable one.Against that background, the Chairman, in our view, was entitled to refuse the application for review.We are unable to find any error of law in the exercise of that discretion. There is no arguable case on this appeal which justifies a full hearing. We dismiss the appeal against the review decision.