Gentle & Ors v. Perkins Group Ltd [1997] UKEAT 345_93_1103

EAT
Gentle & Ors v. Perkins Group Ltd
[1997] UKEAT 345_93_1103 · 1997-03-11
MR JUSTICE MORISON (PRESIDENT): There are two appeals in this case, firstly against an Industrial Tribunal decision which was sent to the parties on 4 March 1993, which we will call the "dismissal appeal". Secondly, against the Industrial Tribunal decision which refused to extend the Appellants' time for seeking a review of that decision, which was promulgated on 14 August 1996, which we will call the "review decision".There is a considerable background to this case. The Appellants worked for the Respondents for a substantial number of years as members latterly of the Planning department in Perkins Technology, which was one of the Respondent's divisions. In 1991 there were two redundancy exercises carried out by the Respondents. During that process all three Appellants were dismissed ostensibly by reason of redundancy, with effect from 8 November 1991.Prior to their dismissal, the Appellants had complained to their superior about the alleged misconduct of a Mr Brammall, one of their work colleagues described as the "team leader". Specifically they alleged that he had been falsifying his time-keeping records. The Appellants believed and believe that the true reason for their dismissal was that they had made this complaint; that they were not therefore truly redundant and that the company had simply used the redundancy as a mechanism by which they could remove them from their employment.They presented a complaint of unfair dismissal which was unanimously dismissed. Prior to the hearing, the Industrial Tribunal had made a specific discovery order at the Appellants' request. That order is to be found at page 377 of our file:
"It is the decision of the Tribunal that (i) the respondents be ordered to supply to the applicants copies of staff performance asessments for Mr Brammall for the years 1988 and 1989, on or before 28 September;
(ii) the undertaking given on behalf of the respondents be complied with on or before 28 September;

(iii) a witness order be issued for Mr Peter Norman."

Pursuant to that order, the employers, by a letter dated 24 September 1992, served a document which is referred to at paragraph 21 of the Industrial Tribunal's decision on dismissal. One of the orders that had been made by the Industrial Tribunal at the interlocutory stage was disclosure of all letters, memoranda, or other documents relating, amongst other things, to any warnings given in connection with any disciplinary proceedings against Mr Brammall. That document which was disclosed would show that Mr Brammall should be spoken to about taking care with booking time, but that no further action should be taken. In fact, Mr Brammall had been given a final written warning in respect of the complaints which had been made by the Appellants, of which the Appellants had become aware through their union, who had received, in accordance with the company's procedures, a copy of that warning and that is referred to at paragraph 20 of the "dismissal decision".It was and is the Appellants' belief that the personnel note referred to at paragraph 21 had been written expressly to try and conceal what had happened to Mr Brammall. It was important to the employer's case that Mr Brammall had been offered a new position, as opposed to being made redundant, on the basis of the assessments of performance which had been made. Further, the Appellants say that the Respondents informed the Industrial Tribunal at the discovery hearing that there were no 1990 and 1991 annual appraisals relevant to Mr Brammall, because there were none in relation to any of the employees in their group. At the hearing the Appellants were provided with what was said to be their appraisals for 1991. They had not previously seen them and were therefore concerned about their authenticity.The Industrial Tribunal was critical of the employer's procedures and selection processes; concluded that the dismissals were not unfair. In March 1993 some time after the dismissal decision had been promulgated, Mr Robinson had a conversation with a Miss Peachey, who was one of the company's employees. As a result of what he was told, he became more convinced that the annual appraisals for 1991 had been written especially for the Industrial Tribunal hearing, and he sought, unsuccessfully as it transpired, to contact another female employee who could tell him more about when the documents had been made.Later that year he reported his suspicions to the police. It was his view that the company had produced forged documents to the Industrial Tribunal and therefore had been guilty of a serious criminal offence. At a review hearing sought by the Appellants, his suspicions were somewhat obliquely referred to in his closing submissions but were not otherwise mentioned. In November 1995 Mr Robinson, on behalf of the Appellants, came into possession of a report from an Inspector Bullock, which he thought confirmed his suspicions. This was, we think, the first piece of independent evidence whose value we express no view about, that Mr Robinson had had to sustain his belief that he and the other Appellants had been the victims of a miscarriage of justice, allegedly caused by his employer's handling of the documentation presented to the Tribunal at the unfair dismissal hearing.On 23 November 1995 the matter came before this Court by way of an appeal against the unfair dismissal decision. At that hearing Mr Robinson and his colleagues were represented by Counsel, who asked on their behalf that the appeal should be adjourned. The basis of the application to adjourn was that they had also made an application to the Industrial Tribunal for the second time, that there should be a review hearing conducted by the Industrial Tribunal in the light of the evidence which was now available from Inspector Bullock. This Court noted at page 2H of the decision as follows:
"We are told that Mr Robinson sought the co-operation of .....[the other female employee] soon after the conversation with the other employee. He sought that co-operation in or about March to April 1993, but co-operation was not forthcoming. Eventually he reported the matter to the police; first to the Bedfordshire Constabulary and in February 1994 to the Cambridgeshire Constabulary. We have before us a statement signed by Inspector Bullock of the Cambridgeshire Constabulary, which refers to meetings which he had with the employee to whom Mr Robinson had originally spoken, ...., and also with .....[the second employee] herself. The potentially important conversation is the one with ...... [the second employee]. Inspector Bullock who has been present today, although he has not been called to give evidence, records that he saw ..... [the second employee] on 4 March 1995. His statement says:
"... I then showed ...... [the second employee] copies of three 1991 appraisals relating to Robinson, Gentle and Rackstraw [the three Appellants]. She confirmed that they had definitely been typed up by herself and was certain of that fact. She could not remember when she typed them up, it may have been shortly before the Industrial Tribunal, but she was 99 per cent certain that they were typed up after the three men left the company which I understand was the 8th November 1991."...There are then certain passages which we need not read. There is then a further part of this statement by Inspector Bullock which reads as follows:"... I asked her if she had just been tidying up documents for the Tribunal and perhaps typing up documents for the file which were illegible or was it a case of typing up documents which would be produced at the Tribunal which were to give the impression that they had been created at an earlier date. She replied that it was the latter. She said that she was unhappy about typing them up and recalls mentioning the matter to .... [the first employee]."...The statement by Inspector Bullock also records .... [the second employee] saying:"... She said that she would be prepared to make a statement about the matter but she would like to speak to her employers first."...That would seem to be a reference to a potential witness statement made for the purpose of possible criminal proceedings. The matter was in fact passed to the Bedfordshire Constabulary. They have been dealing with this matter since then. We are told that their investigations are not yet complete. [We have been told that the police have decided that no further action should be taken in this case.] No-one knows whether that constabulary is in possession of a formal witness statement made by ....[the second employee]. It seems that Mr Robinson asked ....[the second employee] to attend this hearing today, but she apparently was told by someone within the E.A.T. offices that she need not do so; that being a comment made for understandable reasons, and in the event she has not attended."The EAT then referred to the statement of Inspector Bullock and note that it is dated 7 November and they continue:"It is an understatement to say that these proceedings have been very long drawn out. They have gone through already a regrettable passage of applications for review, appeals to this Tribunal and various other processes, before arriving at this hearing today. Nonetheless, Mr Oldham on behalf of the Appellants says that his clients meet the tests set out for fresh evidence to be admitted by an Inland Tribunal, and thereby for a review of a Tribunal decision, as spelt out in Wileman v Minilec Engineering Ltd [1988] IRLR 144."...Having noted the arguments either way on that issue, the Tribunal went on in this way:
"It does not seem to us that the Appellants are bound to fail before the Industrial Tribunal on that limb of the Wileman test. The allegations that are being made, in effect, in the course of the statement that has been put before us today by Inspector Bullock are extremely serious allegations: essentially alleging that there has been some deliberate fabrication of evidence on the part of officers and employees of the Respondent company. Those allegations are not ones that should be advanced lightly before an Industrial Tribunal. They need good evidence to back them up. We can well understand that the Appellants did not see fit to try to raise them before the Industrial Tribunal at its original hearing. So far as the review hearing is concerned, it is true that at that stage the Appellants did have available to them, at any rate, an oral statement at that time by .... [the first employee] about what she had been told by .... [the second employee]. We do not wish to express a view specifically on whether or not that could have been put before the Tribunal in January and February 1994 at the review hearing. It suffices to say that in our judgement the Industrial Tribunal could, if it so wishes, take the view that the Appellants had good reason for not seeking to act at that stage on the basis of the evidence so far available and that they were still acting with reasonable diligence at that time."
Accordingly, the Employment Appeal Tribunal adjourned the hearing of the appeal. The matter then came before the Industrial Tribunal to consider whether they should carry out a review of the dismissal decision, in the light of the fresh evidence which was put before them by the Appellants. As we understand the position, at the hearing, the Chairman himself indicated that he would wish first to consider the question as to whether time should be extended for the conducting of the review. It is right to record the fact that the employers had made a written submission to the effect that the application for a review was out of time, but as we understand it, both parties had attended the Tribunal, ready and willing to call the evidence on the review, should the review go ahead.The Industrial Tribunal's decision is set out in clear terms in twenty paragraphs. In the third paragraph they set out a summary of the history of the matter:
"... The Tribunal on 29, 30 September, 1 and 2 December 1992 and 18, 19 and 20 January 1993 heard a complaint by the three Applicants that they were unfairly dismissed. The Tribunal unanimously decided that they were fairly dismissed. The decision was promulgated on 4 March 1993. It was a seven day hearing and a number of issues were canvassed. The Applicants applied for a review, they desired as part of their review application to call a number of witnesses. I declined to issue witness orders and they appealed against that decision. On 18 November 1993, the Employment Appeal Tribunal dismissed that appeal. The original review hearing was on 31 January 1994 and the 1 December 1994. The review application was refused by a unanimous decision of the Tribunal, with that decision being promulgated on 2 March 1994. There was an appeal by the Applicants against that review decision and that appeal was dismissed on 17 May 1994 on a preliminary hearing on the New Order Procedure. At the same time as the review application was progressing, the Applicants were appealing against the original decision that they had been fairly dismissed. Also on 17 May 1994, their appeal was allowed to proceed to a full hearing."
At paragraph 8 they set out the circumstances in which they Appellants made their application for a review:
"... It concerns information which came into possession of the Applicant Mr Robinson in March 1993. He was visiting an employee of the Respondents, ... [the first employee]. His case is that on that visit he was told that certain documents in particular 1991 appraisals for the Applicants were typed after they were dismissed in November 1991 and before the Industrial Tribunal hearing. The person who had typed them was not ... [the first employee] but ... [the second employee]. Mr Robinson had always believed this to be the case and indeed had raised the question at the original hearing as to the date of the typing. He reported this on 22 December 1993 to Detective Constable Sheehan. As we understand the way he has put it in this hearing, this is as a consequence of something raised during the appeal hearing on 18 November 1993. We have perused that decision and can see nothing in it dealing directly with this point. However on pages 2 and 3 of the Judgment there is a reference to problems of witnesses and perjury that may be the reference. Of course, however, matters frequently come up at a hearing which are not incorporated in a decision in the shape of comments made by parties' representatives and the Tribunal."
At paragraph 12 they refer to the review rule which is Rule 11(1)(c) and (e). It is to be noted that Rule 11(e) refers to the interests of justice requiring such a review. At paragraph 13 the Industrial Tribunal say this:
"If the Applicants could put before the Tribunal material to show that the appraisals were typed after dismissal and before the hearing and other documents were so typed, then it could have two effects. It could relate to the reason for the dismissal, the Tribunal having found that it was a dismissal by reason of redundancy. It could affect the credibility of the Respondents' witnesses and cause a different finding as to the reason to be made and secondly it would affect generally the credibility in connection with the selection of the three Applicants for redundancy if in fact redundancy were to remain the reason for the dismissal. Furthermore, the way it is put by the Applicants raise serious matters of false documents being put before the Tribunal and false evidence being given at the original hearing."
The essence of the Tribunal's decision is contained in paragraphs 16 and 17:16. As a generalisation the Industrial Tribunal procedure is intended to deal with employment disputes speedily. Regrettably this is not always possible but it is the intention. Time limits for presenting applications are strict although time may be extended in appropriate circumstances. In the present case the Respondents have a decision in their favour although there is of course an appeal outstanding that decision. The Applicants have had "one bite of the cherry". They have furthermore had one review application. When they made that first review application, Mr Robinson had spoken to ...[the first employee] who had told him about ... [the second employee] and the typing of the documents. Now there is a second review application which deals with matters which did come up at the original hearing in connection with the typing of the documents. This was taken further through ...[the first employee's] conversation with Mr Robinson in March and then finally put in written form by Inspector Bullock's statement in November 1995. Inspector Bullock's statement is the first direct contact that the Applicants had of a statement to be made by ... [the second employee] herself. They had not made contact with her before then. As I have said, the Applicant has said that he wrote whilst ... [the second employee] has said that she never received a letter. Of course it is possible that Mr Robinson wrote and she was away or something and never received the letter. What is clear is that there was no face-to-face contact or as we understand it a telephone conversation."
"17. Is it a satisfactory explanation to extend time for the Applicants to wait until they had the statement of Inspector Bullock? We are satisfied this is not the case. With their views as to the documents at the original hearing being false ones, the Applicants had heard information relevant to this from ... [the first employee] in March 1993. ... [The first employee] was not directly involved but she did know ... [the second employee]. Mr Robinson and ... [the second employee] were work acquaintances and knew one another as we understand it quite well in that capacity but were not family friends, as was clarified. One would have thought that the important thing for Mr Robinson was to make contact with ... [the second employee] and hear from her directly what was the position. We find his efforts in this direction inadequate. Accepting for this purpose that he wrote on three occasions which is over a long stretch of time, he knew her from work, he could have done considerably more. We are satisfied it would be quite wrong in these circumstances to extend the time on the basis of the new information only becoming available from Inspector Bullock's statement. The Applicant would be aware from speaking to ...[the first employee] of what ... [the second employee's] evidence would relate to. He could and should if intending to take this to a review have taken steps earlier to obtain a statement from her.
It will be noted that the Industrial Tribunal's decision concentrates on the blame-worthiness, or otherwise, of the Appellants in pursuing, or not pursuing, their own enquiries rather faster than they did, regardless of the police investigation. They do not expressly weigh any prejudice to the employers, nor take account of the public interest that courts investigate and put right alleged miscarriages of justice whenever possible, as soon as possible.Before us today, Mr Robinson on behalf of the Appellants, with our encouragement, concentrated mainly on the review appeal. As far as the dismissal decision is concerned, if the evidence presented to the Industrial Tribunal was sound, we ourselves would not have felt able to say that the Industrial Tribunal had erred in law. Whilst some of us might have on the facts as stated and found by the Industrial Tribunal arrived at a different conclusion on the fairness of the dismissal, it would not have been open to us in our judgment to have concluded that there was an error of law. However, Mr Robinson says, in effect, that the Industrial Tribunal have allowed their rules of procedure to stand in the way of the doing of justice between the parties.Mr Lock's submission on the review application was: firstly, that the Industrial Tribunal had not mis-directed itself. Secondly, he reminded us more than once, that we can only interfere with a decision of this sort of an Industrial Tribunal if we are satisfied that it was manifestly unreasonable or there was a material mis-direction in law. Thirdly, he says rhetorically, when will the employers stop being persecuted by these Appellants, who see conspiracies all around them. Fourthly, he refers to the time that has elapsed in this case; the dimming of memories that will follow from such lapse of time. Finally, even if the appraisals were found or considered to be falsified, then that was not a material part of the Industrial Tribunal's decision to dismiss.We have considered the rival arguments with care. It seems to us that the Industrial Tribunal has erred in law in the review decision which it arrived at. It seems to us that they have taken what one might describe, as a somewhat one-sided look at the question of how they should exercise their discretion. What was needed, in our judgement, was a careful balance to be struck between the interests of justice and the ensuring that miscarriages of justice are fully and properly investigated and corrected where they exist.The prejudice to the parties by the grant or refusal to grant a review, having regard to the nature of the fresh evidence which was tendered to them, are not properly reflected in paragraphs 16 and 17. We have already indicated and we understand it to be accepted, that nowhere overtly in the relevant paragraphs have the Industrial Tribunal directed their attention to the question of prejudice, nor have they overtly referred to the question of the public interest, or the interests of justice. It is fair to say that they had referred to the interests of justice in paragraph 12 which simply recites the relevant parts of the rule, but in our judgement what was required in their reasoning process, was a weighing of the relevant factors which we have endeavoured to put forward.It also seems to us to be sensible and consistent with the doing of justice that the review should take place and we express the hope that the allegations which are being made by the employees, will be put an end to one way or the other. At the moment, as it seems to us, by depriving them of the right to present this material to the Industrial Tribunal and have an adjudication upon it, they will be left with a burning and great sense of injustice caused by the application of a time limit provision in the rules, where the Tribunal has a wide discretion to extend time where the interests of justice so require.It seems to us that there has been a very prolonged and detailed series of hearings relating to this matter and the interests of both parties require a speedy resolution of the issues now before them. In our view the Tribunal should concentrate on those matters which allegedly have come to light since the original decision on dismissal was made. We express the view that it would be desirable, if possible, for this review hearing to take place before the same Tribunal who heard the original dismissal application. We understand from enquiries which were made by us before this case began, that two Members of the Tribunal may have retired, one certainly has, the other may have retired before the matter could come back for hearing. Whether arrangements can be made for them to come out of retirement to hear the review, we are not sure, but we would certainly express the hope that if they were willing and that were possible, that that should occur. We should add that Counsel indicated to us, in the course of his submissions, that the fact that we had indicated at the outset that we had made enquiries as to the availability of the lay Members, were we to take the view that the matter should go back for a review, had not inspired confidence, as he put it, by his clients in this Employment Appeal Tribunal. We hope on mature reflection that he and his clients will appreciate that the enquiry about the availability of the Members was no indication that the Court had made up its mind before it heard the arguments. Indeed, it had not.Accordingly, it is our view that the matter should go back for a review hearing, so that the parties can call the evidence which they had available at the Industrial Tribunal and would have called, but for the time limit point having been taken. In those circumstances we allow that appeal.We have been asked for leave to appeal against this decision. In our view there is no point of law that is involved in the decision that we have arrived at. It seems to us that the sooner the review hearing takes place the better, because it would be in the interests of all parties that this matter should be resolved one way or another.