MR JOHN TOOLEY v MISS DEBORAH BRIMELOW [2000] UKEAT 310_00_1210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 310_00_1210Case No Appeal No. EAT/310/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR JOHN TOOLEYAPPELLANTMISS DEBORAH BRIMELOWRESPONDENT
Before
Mr Justice LindsayDate 12 October 2000
[1]APPEARANCES For the Appellant MS ROBERTSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme For the Respondent MR JUSTICE LINDSAY (PRESIDENT) This is a preliminary hearing of the appeal of Mr John Tooley in the matter Miss Deborah Brimelow -v- Mr Tooley . Today Ms Robertson has appeared for Mr Tooley under the ELAAS scheme and we are grateful for her argument and the assistance she has given us. On 6 October of last year there was a hearing at the Employment Tribunal at Exeter before a three person panel under the chairmanship of Mr P S L Housego. It ruled upon an IT1 in which Miss Brimelow alleged she had been sexually discriminated against by her employer, Mr Tooley.[2]The unanimous decision of the Tribunal was that the Respondent, Mr Tooley, was ordered to pay to Miss Brimelow £3000 and interest of £105, in total £3105. That decision was sent to the parties on 14 October of last year. The nature of the discrimination complained of was an alleged touching of Miss Brimelow's breasts by Mr Tooley on 6 April 1999. The Tribunal said that they had found the case not easy to decide, and there was certainly a head-on conflict of evidence.[3]When, after the alleged event, Miss Brimelow got home, her father, as he said in evidence to the Tribunal:
" …..told us" - I am quoting now from the Employment Tribunal's decision: - "….that Miss Brimelow was in tears, but he could not find out why. She would say only that it was to do with the landlord and "like before"
. Miss Brimelow had received early in 1999, £3200 from the Criminal Injuries Compensation Board arising from a sexual assault some three years previously. Mr Brimelow called Mrs Brimelow to whom Miss Brimelow told what had occurred."[4]That was evidence which the Tribunal regarded as very important; in their paragraph 13 they say:
"13 We find that Mr Brimelow's evidence is the most compelling of all the relevant witnesses that we have heard. We do not believe that it is remotely credible that the Applicant should enact this story for her father."
[5]However, although there had been at least some informal arrangements for the exchange of witness statements before the hearing, Mr Tooley's solicitors say that they had not only not received any witness statement before the hearing relating to Mr Brimelow but that they did not even know that he was to be called to give evidence at all. Nor did any witness statement that they had been given suggest, either, that Mr Brimelow had been present when Miss Brimelow reached her home or that they had spoken together on any relevant subject. It was, though, common ground that, on the evening in question or shortly thereafter, persons on the Brimelow side and one other had been to the police station and had made statements.[6]Before the hearing, the Brimelow side had sought to get copies of the statements made to the police, describing them as of major importance, and, in effect, asking for a postponement of the Employment Tribunal hearing in order to get them. The Employment Tribunal turned down that request although there is no indication in our papers whether the Tooley side took any part in the declining of that request.[7]One can quite understand the Employment Tribunal fearing to lose a fixed hearing date, but once, on the hearing date itself, the Tribunal had found the case difficult to decide, as it did, it may be thought a little remarkable that the Tribunal itself did not raise with the parties the wisdom of their seeing the only closely contemporary records or allegations of what had happened on the evening in question, although it is fair to observe that neither side is said to have requested any adjournment on the hearing day itself.[8]Once the decision had gone as it had, Mr Tooley's solicitors, after very persistent enquiries, ascertained that no police statement had been taken from Mr Brimelow, and that not unreasonably suggested to Mr Tooley's solicitors a very real likelihood, as it seemed to them, that, firstly, Miss Brimelow had not told the police that her father had been present when she got home, that she had not complained to her father on the evening itself, and, possibly, even that Mr Brimelow had not even been present on the evening. It was not an address at which he habitually lived.[9]Accordingly on 29 October, Mr Tooley's solicitors applied in writing for a review by the Tribunal. Miss Brimelow's solicitors resisted that in a reasoned letter of 4 November. The Chairman then directed that any further written representation should be lodged by the close of the following day, 5 November, and, in response to that, Mr Tooley's solicitors managed to lodge over three pages of reasoned argument on 5 November, including a copy of a letter to them from the police stating that the only statements to the police had been made by a Mr King (who was, at the hearing, a witness on the Tooley side) and by Miss Brimelow herself. Miss Brimelow had, they said, been approached for her consent to a release of the statement she had given to the police to Mr Tooley's solicitors but that that consent had not been given.[10]On 19 November the Chairman alone refused a review. He said by way of decision:
"In exercise of the powers conferred on me by Rule 11(5) of the Rules of Procedure set out in the Schedule to the Employment Tribunals Rules of Procedure 1993 I hereby refuse the application for a review made by the respondent in its letter dated 29 October 1999 since such application has no reasonable prospect of success for the following reasons."
And then he sets out reasons.[11]Under Employment Tribunal Rule 11(5) a Chairman alone can rule upon a review application if, in his opinion, it has no reasonable prospect of success. But the decision whether it has or has not any reasonable prospect of success has, of course, to be made judicially. Here, as it seems to us, a possible arguable point of law emerges and, of course, we must emphasise we are only at this stage looking at whether there a reasonably arguable point of law arises and it is this: given the written representations he had received, could any Chairman alone, at any rate without full knowledge of what, if any, communications there had been between the parties as to witness statements and their exchange and possibly without knowledge of what the Employment Tribunal office had told or directed the parties as to witness statements, have properly directed himself that the application for a review had no reasonable prospect of success, which is a stern test and is plainly intended to deal only with plain and obvious cases.[12]Should he not have reconvened the whole original three person panel so that together they could have considered the review? Did he err in law in not doing so? There is one possible area of arguable point of law.[13]But there is a second possible error of law that is arguable arising out of the reasons which the Chairman did give for refusing a review. One of the reasons given by the Chairman is in his paragraph 5: "5 The Applicant requested that the hearing be adjourned for the statements to be produced. That request was made 2 days before the hearing and was refused by a Chairman on the grounds that there had been ample time to obtain such statements. It would be inconsistent to allow a review on the same grounds.[14]Well, Miss Brimelow could have given consent to the release by the police to her of her statement or to her solicitors of her statement, and it was, therefore, right for the Chairman to have said that she had had ample time to obtain it. But until Mr Tooley learned that Mr Brimelow was to give evidence that his daughter had complained to him on the night in question, the solicitors for Mr Tooley had no reason to think that the fact that he did not make a police statement was going to be of any relevance at all. Mr Tooley did not learn of Mr Brimelow's evidence until the hearing itself, and, moreover, that was after Miss Brimelow, and possibly after her mother also, had given their completed oral evidence, which, as it would seem, did not speak of the presence of her father or of complaint to him, although the details of that are not yet clear.[15]In addition, it may be that Miss Brimelow's advisers had failed to comply with arrangements or directions as to the prior exchange of witness statements. It is arguable in those circumstances that to compare the two applications, as the Chairman did in his paragraph 5 - namely the prior request for an adjournment by the Brimelow side and the later review by the Tooley side - is to make a totally false comparison. There is no need for consistency between the two because the two are so utterly different.[16]Then in paragraph 7 the Chairman says:
"7 The respondent knew of the statements at all material times " and he goes on: "
Their absence may have denied the respondent the opportunity for some cross examination but that does not equal new evidence. They seem of greater importance to the respondent now that the hearing has concluded, but that is not the same as satisfying a requirement that there must be new evidence"[17]Well, that may be a good ground for dealing with the review so far as the review concerned Employment Tribunal Rules 11(1) (d) because the arrival of fresh evidence is a specific ground in 11(1)(d). But the application for the review was also made on the broader ground of 11(1)(e) - the interests of justice - the Chairman knew that was to be the case.[18]Further, there does seem to be a possible conflict between the first line of paragraph 7:
"7 The respondent knew of the statements at all material times" and the later paragaph 10: "10 At the time of the Tribunal the respondent did not know who had given evidence to the police "
But, to complete paragraph 10:
"and so whether or not the applicant's father gave a statement is not germane to the application for a review."
And in paragraph 8 the Chairman records: 8…………The evidence of the applicant to the Tribunal was that she did not speak to her father, but to her mother."[19]Arguably, the Chairman never grapples with the "interests of justice" side of the application and does not consider the argument that because no witness statement had been supplied of Mr Brimelow's evidence and because it was not known even that Mr Brimelow would be giving evidence and because Miss Brimelow's evidence, even her oral evidence, did not apparently refer to her complaining to her father, that Mr Tooley's solicitors had had no reason to reflect on whether he had made any statement to the police, nor whether Miss Brimelow's police statement had suggested even that he had been there when she got home.[20]It is in our view arguable - and again we cannot over-emphasise that is all we are looking at - that the Chairman, especially in his concentration on what was new evidence, erred in law in failing to attend to the alternative ground, that the interests of justice required the review; and moreover, it is arguable that, quite apart from whether he should have put the application for the review to the whole panel of three, the reasons that he did in fact give do not amount to a tenable view that the application had no reasonable prospect of success.[21]Accordingly we do permit the Notice of Appeal to go to a full hearing. Before the full hearing the Employment Tribunal should be requested to supply to the Employment Appeal Tribunal and to the parties such advice or directions or requests to the parties or either of them on the subject of witness statements and their exchange which the Employment Tribunal had itself promulgated in relation to this case. To that body of material, if it transpires to be one, there should be added the records, or evidence of such conversations and communications as the parties had between themselves on the subject of exchange of witness statements prior to or at the hearing on 6 October.[22]That is so that the Employment Appeal Tribunal can build up a picture of how far, if at all, the failure on the Brimelow side to supply a witness statement in respect of Mr Brimelow, was not only possibly unfair but, perhaps, in breach of whatever appears from those communications and directions. But, with that added requirement, we otherwise simply direct the matter to go to a full hearing.