Fraser The Crown & Cushion Hotel v Kirton [1998] UKEAT 906_98_0112

EAT
Fraser The Crown & Cushion Hotel v Kirton
[1998] UKEAT 906_98_0112 · 1998-12-01
MR JUSTICE LINDSAY : We have before us as a preliminary hearing the appeal by Mr J. Fraser in the matter Mrs R Kirton against Mr J. Fraser. Sometimes the Respondent is described as Mr J. Fraser, The Crown & Cushion Hotel. Mr Fraser has attended before us today. The decision against which there is an appeal is a decision promulgated on 1 June 1998 after a hearing on Tuesday, 19 May 1998 before the Chairman alone, Mr Jenkinson.The matter has a long and rather worrying procedural history which needs to be briefly explained if the foreground is to be understood. Mrs Ruth Kirton was employed as Hotel Manager at the Lismore Hotel in Banbury. She began work there in 1985. The hotel passed through a number of ownerships and Mr Fraser acquired the business on 10 February 1995. Only shortly thereafter, on 26 February 1995, Mrs Kirton resigned. She claimed to the Industrial Tribunal that she had been constructively dismissed and that her dismissal was unfair.There was a two-day hearing on 1 August 1995 and 22 September 1995 and on 11 October 1995 the Industrial Tribunal unanimously held that Mrs Kirton's dismissal was unfair. It gave Extended Reasons for that decision on 25 October 1995. Mr Fraser asked for a review. It was declined on 7 December 1995 after a hearing on 5 December 1995. Accordingly, the remedies hearing went ahead and was heard on 11 December 1995 and on 12 January 1996. The Industrial Tribunal unanimously held in favour of Mrs Kirton, awarding her a basic award of £1,962 and a compensatory award of £1,282 to be paid without deduction.In the meantime Mr Fraser had lodged a Notice of Appeal to the Employment Appeal Tribunal against the decision promulgated on 25 October 1995. The EAT heard that appeal and dismissed it on 13 May 1996. As far as we can tell from our papers there has been no appeal to the Court of Appeal. We thus must take it to be the position that Mrs Kirton was unfairly dismissed in the sense that the Industrial Tribunal so held, that there was an appeal to the EAT and that the appeal was dismissed. That is the background to the matter.Now we come to the foreground and the position is that by three letters dated 24, 27 and 28 April 1998 Mr Fraser applied to the Industrial Tribunal for a review of the decision, which had been sent to the parties on 11 October 1995, following a hearing (as I mentioned) in August 1995 and September 1995. We have an appeal against the result of that and the result was that the Chairman, by his decision promulgated on 1 June 1998, refused the application for a review.We thus have before us an appeal against the refusal by the Chairman to grant a review in 1998 of a decision in October 1995, being a decision, moreover, as to which there had been an earlier declined review and as to which there been an earlier refused appeal. This means that one has to look at the rules in connection with reviews. Under the heading of "Review of Tribunal's decision" in The Industrial Tribunals (Constitution and Rules of Procedure ) Regulations 1993 , it is provided that:
"11 (1) 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 - (a) .... (b) .... (c) .... (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."
Then Sub-rule (2) provides, in relation to a tribunal reviewing a decision of its own motion, as does (3). Those are not relevant for immediate purposes but sub-rule (4) says:
"(4) An application for the purposes of paragraph (1) may be made at the hearing. If no application is made at the hearing, an application may be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full."
That is the procedural background against which the application which is now appealed needs to be considered. (I should read perhaps sub-rule (5) of 11):
"(5) An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success."
Mr Jenkinson was not only the person who heard the review but the Chairman who had heard the substantive case that led to the decision of 11 October 1995.In the decision under appeal the Chairman sets out the request for the review and then sets out the procedural history (much as I have just described it) and then the Chairman began to look at the matter on the merits. It may be (we would say that it was) unnecessary to look at the matter on the merits because rule 11(4) was plainly not complied with, but, looking at it on its merits, the Chairman said at paragraph 3:
"3 The respondent's letter of 24 April 1998 purports to refer to new evidence. It is, however, a rehash of matters which were available at the time of the hearing of the unfair dismissal claim on 1 August 1995, and could have been presented to the Tribunal, assuming that the Tribunal would have allowed their admission as relevant."
So he there deals with the first of the three letters which were the material which led to the request for a review. Then he dealt in paragraph 4 with the second. The letter of 27 April consists of submissions rather than matters of new evidence, which was disposed of in that way, and then he turns to the letter of 28 April and sets out the material which there is to be found and he sums up, at the top of our page 14, paragraph 6:
"Mr Fraser claims that the new evidence, as he terms it, proves that Mrs Kirton was directly and knowingly involved in illegal large scale VAT and PAYE avoidance, on the basis of documentation in Mrs Kirton's own handwriting. ...."
The Chairman then sets out part of rule 11(1) and, in particular, sub-paragraphs (d) and (e) and he goes on:
"8 Mr Fraser has produced no new evidence falling within the provisions of (d). The only matters of evidence which he has adduced are those referred to by the accountants at paragraph 5 above, but the details to which they refer do not constitute new evidence: the details were available in the documents, which, according to the respondent's letter of 24 April, Mrs Kirton returned to the respondent from her home before walking out."
Mr Fraser before us says that that conclusion is quite wrong. He says that, even if the original details had existed as at October 1995, they were in the possession of Mrs Kirton and therefore could not have been produced unless she had disclosed them, which she did not. Mr Fraser did not even know of their existence at the time. They have only come to his eyes later and hence, he says, the new papers do represent new evidence, he says, within sub-rule (d). The difficulty about that is that it requires a detailed study of the papers in question and, if Mr Fraser was in a position to prove his case on that subject and if the position was then that he would succeed, then we would have plainly to look into that matter. But the difficulty is that the Chairman could not, in any event, even had the evidence been shown to be new evidence within the rule, have granted a review because once the 14 days of sub-rule (4) has expired, a review is literally impossible. Accordingly, even if the Chairman was wrong in his view of whether the evidence was new or not, it would avail Mr Fraser nothing. Equally, even supposing the Chairman was wrong in his view about the interests of justice not requiring a review, it would still avail Mr Fraser nothing. What the Chairman said on that subject is this:
"I have also considered whether, looking overall at the three letters received from the Respondent, the interests of justice require a review."
There is nothing new in those letters which is relevant to a claim based on constructive dismissal in which the principal issue is whether the employer behaved in such a way as to show that he no longer intended to be bound by a material term of the Applicant's contract of employment. Again, even assuming that the Chairman got it wrong about the irrelevance of the new material, even so he could not have granted a review. Accordingly, we see no material error of law in the Industrial Tribunal Chairman's conclusion that a review should be refused. Mr Jenkinson, the Chairman, concluded by saying this:
"10 Finally, the claim relates to events which took place over three years ago and has twice been the subject of unsuccessful appeals by the respondent to the Employment Appeal Tribunal. In the interests of justice, there should be an end to this litigation."
Parliament, when it came to settle upon the particular rules to be applicable to Industrial Tribunal procedure, created an ability to review but plainly recognised that time limits had to be put upon that ability and, no doubt, with a view to achieving early finality, selected the relatively short period which one finds in rule 11(4). We cannot challenge that. That is the fixed law and accordingly, for the reasons that we have given, we see this as a case in which the application for a review had to be refused. It was refused. There is no material error of law in that refusal and accordingly we dismiss the appeal.