MRS C JOHNSON v LUTON & DUNSTABLE HOSPITAL NHS TRUST [2000] UKEAT 1378_98_1002

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1378_98_1002Case No Appeal No. EAT/1378/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS C JOHNSONAPPELLANTLUTON & DUNSTABLE HOSPITAL NHS TRUSTRESPONDENT
Before
His Honour Judge C SmithDate 10 February 2000
[1]APPEARANCES For the Appellant MR SEAN JONES (of Counsel) Instructed by: Messrs Hodge Jones & Allen Solicitors Twyman House 31-39 Camden Road London NW1 9LR For the Respondents MR ANDREW ROWLAND (of Counsel) Instructed by: Messrs Capsticks Solicitors General Accident Building 77-83 Upper Richmond Road London SW15 2TT JUDGE COLIN SMITH QC : This is an appeal by Mrs Johnson against the decision of a Chairman of an Employment Tribunal sitting alone promulgated on 5th August 1998 whereby the Chairman refused an application by Mrs Johnson for a review of a decision made by a full Industrial Tribunal (as they were then called) as long ago as 1st May 1996 when after a long hearing, over many days, the Industrial Tribunal found that Mrs Johnson's complaints of race and sex discrimination and harassment against her employers, the Luton & Dunstable Hospital NHS Trust, should be dismissed but the Industrial Tribunal further found that her complaint for unfair dismissal on the grounds of redundancy, as the tribunal put it, was upheld. The Chairman dismissed the application for a review on the grounds that in her opinion it was very much out of time and had no reasonable prospect of success. It must be said that there is a very long history in relation to these proceedings, which have now stretched over many years since the original dismissal of the appellant in early December 1994. It was rightly stressed by Mr Jones, who has presented an able and tenacious argument on her behalf, that this area of racial discrimination is a very sensitive area of the law and it tends to cause considerable distress and anxiety to those who have to litigate such matters, including of course Mrs Johnson herself, and we have very much borne that in mind in reaching our decision in relation to this matter.[2]On the other hand it is in the interests of the public at large that the respondents' interests also so have to be considered and that there should eventually be finality in litigation however unsatisfactory such finality may appear to the claimants involved in such litigation. We bear all those matters in mind.[3]Turning to the Chairman's decision, which is at page 60 of our bundle, it is necessary to read the first two paragraphs of the decision to put the matter in context:
"1. I have carefully considered the application for a review set out in the Applicant's representative's letter of 20 July 1998. It seeks a review of a Decision of the tribunal promulgated on 1 May 1996 on the ground that new evidence has become available since the conclusion of the hearing. The new evidence which is said to have become available was that on an unspecified date after 24 June 1998, the Applicant became aware of a vacancy at Luton and Dunstable NHS Trust and that had the Applicant known about this vacancy at the time of her dismissal in 1994, she would have submitted this information in her Originating Application which was presented on 6 March 1995. 2. The new evidence referred to therefore has come to light two years after the promulgation of the tribunal's original Decision. There must be finality to litigation…."
The Chairman eventually said in paragraph 4:
"This application being more than two years outside the time limit specified must therefore be refused on the grounds that it has no reasonable prospects of success."
[4]It is submitted to us that the Chairman wrongly exercised her discretion. It is also submitted to us that it is necessary that the matter should be remitted to a fresh tribunal, preferably consisting of those who decided the matter originally in 1996, so that the discretion can be reconsidered and a strong submission has been made to us along those lines.[5]First of all it must be said that it is only in rare circumstances that we can interfere with the discretion of a Chairman exercised under Rule 11(5) in relation to an application for a review. It is a wide discretion. It is apparent, in our judgment, from the decision that the Chairman had in mind the very long delay between the original dismissal in December 1994, the Industrial Tribunal hearing in early 1996, and the application for a review, which came before her in August 1998. She was fully entitled, in our judgment, to take the long delay into account. Such a lengthy delay is plainly a relevant factor to the exercise of her discretion as can be seen from the case of Flint v Eastern Electricity Board [1975] IRLR 277 , particularly the passages from Phillips J's judgment, giving the judgment of the Employment Appeal Tribunal, at paragraphs 28 and 29. At paragraph 28 the learned

judge said this:

"… One also has to consider the interests of the respondents, because it is in their interests that once a hearing which has been fairly conducted is complete, that should be the end of the matter. …"
At paragraph 29 the learned

judge said this:

"But over and above all that, the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be as final as possible; that it should only be in unusual cases that the appellant, the applicant before the Tribunal, is able to have a second bite at the cherry. …"
This approach of the Employment Appeal Tribunal is equally clear from Wileman v Minilec Engineering Ltd [1988] IRLR 144 , particularly at page 147 at paragraph 15 when Popplewell J, giving the judgment of the Employment Appeal Tribunal, said:
"It is intended that hearings before Industrial Tribunals shall be speedy, informal, and more important, they should be decisive. …"
There had been a very long history of appeals and applications for reviews in these proceedings and that was the state of play when the matter came before the Chairman in August 1998 and she was entitled to take into account that long history and that long delay.[6]In our judgment, it is plain from the Chairman's decision that she did also pay regard to the strength or otherwise of the new evidence. She did not expressly set out the principles which apply to allowing a review on the basis of new evidence, but we have no doubt that she had them in mind having regard to the way she dealt with the matter in paragraphs 1 and 2 of her reasons. The principles upon which new evidence can be a ground for review of an Employment Tribunal's decision are those set out in the decision of Wileman to which we have already referred. It is clear from that decision that to qualify as new evidence a crucial requirement is that the evidence must be such that if given it would probably have an 'important influence' on the result of the case. That is clear from paragraph 14 of the judgement in Wileman :
"So far as the Industrial Tribunal's Rules of Procedure Regulations are concerned, we would read into them, not only that the new evidence must be relevant, but that it will probably have an important influence on the result of the case. The reason for that is that simply because it is relevant, unless it is also likely to affect the decision, a great deal of time will be taken up by sending cases back to an Industrial Tribunal for no purpose."
[7]In the circumstances here and because the Chairman has seen fit to express herself somewhat shortly and in rather summary terms, we consider it right that we should ourselves evaluate the strength or weakness of the proposed new evidence in order to test the correctness of the Chairman's decision.[8]What the new evidence comes to is that there is a letter on the file in the appeal bundle dated 9th December 1994 from a Sister Brinklow to the general manager, Mr Ward, of the Trust, offering notice of retirement from nursing due to family reasons with effect from 28th February 1995. We are told and we accept that this had the result that another nurse was promoted from Grade G to Grade H, Mrs Brinklow's grade, and that a Sister Bucciero, who is white, was promoted from Grade F to the vacancy which thus occurred in Grade G.[9]There is no evidence that anybody in the Trust knew of Sister Brinklow's decision to retire before she wrote her letter of 9th December 1994. Contrary to the submissions that we believe were being made to us in this respect, we cannot assume any such knowledge on the part of the Trust.[10]The appellant's employment came to an end on 4th December 1994, i.e., five days before Sister Brinklow wrote her letter.[11]It is submitted and suggested to us that the Trust must have known about this impending resignation and the resulting vacancy for a Grade G nurse and deliberately withheld it or may have deliberately withheld from the appellant for racial reasons, the appellant being black. Reliance is placed upon the fact that the Trust has declined to give particulars of how Ms Bucciero came to be appointed which were sought in September 1998 and, by their solicitors, have advised members of the Trust who were written to by the appellant's representative in November 1999 that they do not have to attend the EAT to give evidence or for any other purpose in the absence of an order from the EAT.[12]We cannot draw any inference or make any assumption of any kind of bad faith on the part of the Trust from any of those matters. First of all there is no evidence that the Trust were aware of the impending resignation. Secondly, in our judgment, the Trust were fully within their rights in declining to give particulars in September 1998 as to how Ms Bucciero came to be appointed, and, thirdly, the solicitors to the Trust were fully entitled to give the advice they did to individual employees with regard to the question of attendance before the Employment Appeal Tribunal.[13]In our judgment, this evidence cannot be relevant in any event to the issue of whether the Trust was motivated by race discrimination against the appellant in 1994. Events after the date of her dismissal, and therefore after the last act of discrimination relied upon, cannot be indicative or probative of what was in the respondents' mind up to the date of dismissal and during the redundancy process. Five Grade G night nurses, three white and two black, were made redundant on 4th December 1994. There was, in our judgment, no ongoing obligation after that date on the respondent Trust to provide alternative employment to them beyond the date of their dismissal. Thus we hold that the proposed new evidence, on our own evaluation of it and having carefully considered it, cannot be relevant to the issue of race discrimination, let alone evidence which could have had an important influence on the result. In this latter regard, it must be said that after a very long hearing the Industrial Tribunal reached emphatic and clearly expressed conclusions that there was no racial discrimination. They reached equally emphatic conclusions that there had been an unfair dismissal. They strongly criticised the respondents for not offering alternative employment to the appellant in their finding of unfair dismissal. Even assuming that the new evidence could be said to be marginally relevant, which in our judgment it plainly was not, it is overwhelmingly clear to us that it would not have affected the result in any way. The dismissal here was in 1994. The Industrial Tribunal proceedings were 1996. Since then there have been a number of reviews and very many appeals, all of which have been dismissed.[14]In our judgment, despite the understandably strong feelings that Mrs Johnson has, which we have already mentioned that we have borne fully in mind, we consider that the time has now come for this litigation to be brought to a conclusion. We uphold the decision of the Chairman and dismiss this appeal. Leave to appeal is refused.