Lawson v Allied Schools [1998] UKEAT 263_98_1803

EAT
Lawson v Allied Schools
[1998] UKEAT 263_98_1803 · 1998-03-18

JUDGE N BUTTER QC :

On 14 and 15 July 1997 an Industrial Tribunal sitting at Norwich decided unanimously that the Applicant, Mrs Lawson, had not been discriminated against by reason of sex and her application was dismissed.At that hearing both parties had been represented by Counsel. In due course the Tribunal sent out its extended reasons in which it covered the evidence which had been heard and concluded, for reasons it indicated, that the Applicant had failed to prove her case.There was an appeal against that decision which came on before the Employment Appeal Tribunal on 23 January 1998. The Tribunal was presided over by His Honour Judge Peter Clark.The Employment Appeal Tribunal concluded that they were quite satisfied that the Appellant would not succeed at a full hearing and concluded that the appeal did not raise any reasonably arguable point of law and had to be dismissed.In the meanwhile, there had been an application to the President of the Industrial Tribunal for a review. The Employment Appeal Tribunal were told about that and had been told that the review had been rejected, but whether or not they were told that there was to be an appeal against that decision is not clear but, in any event, the Tribunal today feels it appropriate to consider the appeal which Mrs Lawson wishes to pursue in relation to the Chairman's refusal to allow the review.It is pertinent to consider the Regulations which, under paragraph 11, say:
"Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that - (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 such a review."
If we look at the Notice of Appeal from the decision of the Industrial Tribunal in which it decided not to grant a review, and this has been supplemented by the skeleton argument which Major Lawson has presented, it is said, for example, in relation to the grounds of appeal that in paragraph 5 of their extended reasons the Industrial Tribunal stated:
"... document 82 of the trial bundle was constructed for the purposes of the hearing and was not a genuine document. .... we do not consider that it would be appropriate to allow the point to be taken on an application for review."
If, however, one looks at the extended reasons promulgated on 8 January 1998, paragraph 5 states:
"The first point that is made is that document 82 of the trial bundle was constructed for the purpose of the hearing and was not a genuine document."
The Tribunal then went on to assess the validity of that contention, saying among other things, that the points were not taken at the time and that they did not consider it would be appropriate to allow the point to be taken on an application for review. They added:
"Nothing now adduced renders the decision taken at the time of the hearing in error in the light of the evidence and argument adduced at the time."
The Tribunal then went on to deal with the various points which had been raised, one being that the trial bundle had been "heavily sanitised". The Tribunal pointed out that this had been a professionally prepared trial bundle. The Tribunal went on to deal with a third point concerning the letter of 8 January by Mrs Rollin, and pointed out that she was the Applicant's own witness and that it would be inappropriate to allow the Applicant to include her own witness, who was not led in evidence on the relevant point, as part of any conspiracy against the Applicant to defeat her application for the post.The Tribunal went on to consider document 16 and made their findings in relation to that. They went on in paragraph 9 to deal with the point raised concerning the reference obtained for Mr Dean, the successful candidate, and again drew attention to the fact that that information was all on the face of it, available at the trial. They went on further to deal with the point made concerning the age of groupings. In their concluding two paragraphs they stated that:
"Although it was a short trial - a two day trial - nevertheless the applicant knew, or her advisors must be presumed to have known, the fact that at the real heart of the case was the standing and credibility of Mr Steele and his fellow governors (to a lesser extent) on the one hand and the applicant on the other. What was known about Knighton House was known at the time and it seems to us [the Chairman said] that nothing new arises - certainly nothing new arises which the interests of justice require we should take into account again to open the proceedings."
In their final paragraph they say:
"We have considered those points and the submission of Mr Lawson in its totality and find that he has not been able to bring any matters to our attention which can properly be described as new evidence not reasonably available at the time and no circumstance arises, which has been brought to our attention, which satisfies us that the interests of justice require a review and in those circumstances the application for review is dismissed."
In order to succeed Major Lawson, on behalf of his wife, would have to establish that the Tribunal in exercising its discretion erred as a matter of law, or reached a conclusion that no reasonable Tribunal could have reached. We are satisfied the Tribunal did consider the many matters that were put before us and we feel entirely unable to conclude that Major Lawson has established an arguable case that there was an error of law or that the Tribunal could not reasonably have reached the decision it did.In these circumstances we would do no service at all to him or to Mrs Lawson by saying that this preliminary hearing should go forward to a full appeal.In these circumstances and for these reasons it is our unanimous view that the appeal fails and must be dismissed.