MRS D SELLEY v ROBERT BOSCH LTD [2000] UKEAT 338_99_2703

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 338_99_2703Case No Appeal No. EAT/338/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS D SELLEYAPPELLANTROBERT BOSCH LTDRESPONDENT
Before
Mr Justice Burton Mr D A C Lambert Miss S M WilsonDate 27 March 2000
[1]APPEARANCES For the Appellant MS P HOLNESS (Friend) MR JUSTICE BURTON : This is an appeal by Mrs Selley, on whose behalf her friend Mrs Holness has been acting today, against the refusal by the Chairman of the Employment Tribunal on 6th January 1999 to allow a review of the decision of the Employment Tribunal at London (North) made unanimously on 2nd June 1998 dismissing the Appellant's claim against her former employer, Robert Bosch Ltd, for unlawful sex and race discrimination, a breach of contract and unfair dismissal. The basis for the Appellant's application for a review was that there was fresh evidence which she sought to have the Employment Tribunal consider by way of review to see whether there was ground for reconsideration of the original decision.[2]The decision of the Chairman was:
"1 The alleged new evidence is either irrelevant to the issues or should have been available prior to the hearing. 2. The Applicant has failed to supply satisfactory answers to queries put by the Tribunal and the matter has drifted over six months. 3. The interests of justice apply to both parties and it is not unreasonable that there should now be some finality in the matter."
[3]The nub of the complaints made by the Appellant before the Employment Tribunal revolved around a comparison between her position and that of a Miss Moriarty. The Tribunal having heard as they put it in paragraph 12 "evidence from a good many witnesses, many of whom were impressive" concluded that there was a conflict between the parties when it came to a comparison of the respective merits of the Appellant and Miss Moriarty and the jobs they did and that they preferred "the evidence of the Respondent that Miss Moriarty's job was the more demanding and that she had the edge in experience and attention to detail."[4]In the correspondence which the Chairman of the Tribunal in his review decision has described as going on for quite some time, the evidence that the Appellant sought to put in, which was said to be fresh evidence, consisted of six pages. So far as the latter two of those pages are concerned, being page 29 in our bundle, which had some information relating to Industrial Tools and British Telecom, and page 30, which was a list of work carried out by the Appellant and Margaret Moriarty, both of which Mrs Holness has told us today were compiled subsequent to the Tribunal by the Appellant, they do not appear to us to have anything fresh in them, or at any rate that the Chairman of the Tribunal was perfectly entitled to conclude that there was nothing fresh in them, thus accepting a submission made to that intent by the Respondent in their letter to the Tribunal opposing the grant of a review dated 3rd December 1998. We can see nothing in those two pages which are anything other than an attempted rehash or re-presentation of evidence which either could have been put before the Tribunal or, in any event, was put before the Tribunal by the Appellant.[5]Mrs Holness on her behalf has indicated that she submits that there may have been some problem with the Appellant's health at the time of the Tribunal, but that is not put forward, and was not put forward, as a ground for review and, in any event, is not supported by any medical evidence before us. All those grounds would, in our view, not be sufficient to challenge the refusal by the Chairman of a review and, in any event, should not go any further than today.[6]So far as the other pages concerned, pages 25 to 28 of our bundle, they are headed up "STATISTICAL INFORMATION RELATED TO PRODUCTIVITY AND STAFF EFFICIENCY". Clearly we are unable to comprehend them in any detail, but on the face of them they appear to say that, by way of a comparison between Miss Moriarty and the Appellant on a monthly basis during January 1993 and November 1996, by whatever yardstick is being used for the purpose of this document, Miss Moriarty and the Appellant are level pegging, alternatively in some cases the Appellant appears to be ahead. As I say, we have no understanding of what that yardstick is or whether any of these figures have any relevance at all.[7]What is asserted by the Appellant is that these documents were sent to her in some unexplained way, anonymously, and received by post from her, and I shall have something to say about that in a moment.[8]The Respondent has been given the opportunity to respond in correspondence with regard to these documents and has not sought to assert that the documents are forgeries or anything of that kind. They have questioned the relevance of them; they have pointed out that in respect of the months of October and November 1996, which are included in the statistics, the Appellant was away on maternity leave, to which the answer that has been put forward is that they were pre-planned before her departure, but the Respondent has not positively asserted that the documents are wholly irrelevant. What is said by the Respondent is this:
"We do not see, and the Applicant has failed to explain, how evidence from an anonymous source comprising statistical information relating to the Applicant and Ms Moriarty's productivity and staff efficiency, would or might lead the Tribunal to change its original decision. These matters were dealt with in considerable detail at the hearing."
[9]This is an appeal against a refusal to review an original decision by the Employment Tribunal. It is extremely difficult, and rightly so, for there to be even a review because of the need for the finality of litigation and even more difficult for there to be an appeal against a refusal of such a review by a Chairman who had been the Chairman in the original decision, and particularly one who called for questions to be answered and participated in and read correspondence between both parties over a period of six months. Such a person would be best equipped to decide whether there was anything fresh before him which might cause him or his fellow members to change his mind. It may well be that that is the right answer.[10]But we are left somewhat uncomfortable that there might be something in these four pages of information which, on what we have been told by the Appellant, were only made available to her afterwards and which might be genuine documents evidencing statistical information available to the Respondent before the Tribunal hearing, inconsistent with the evidence given by its witnesses which was accepted by the Tribunal.[11]We conclude that this is a case in which there ought to be an inter partes hearing of an appeal in which the proper questions can be asked and answered. The proper questions plainly are: whether there is anything in pages 25-28 which amounts to cogent evidence which falsifies or casts material doubt upon evidence that was given by the witnesses at the Tribunal and which might, if reviewed by an Employment Tribunal, give rise to sufficient doubt on its behalf as to cause it to reconsider the decision.[12]It is a precondition of any such cogent evidence being admitted to cause reconsideration of an original hearing that it was not reasonably available at the Tribunal hearing. It is for that reason that I said I would return to the question of the anonymous receipt.[13]On the face of what the Appellant has told us, it was not information that was available to her at the hearing because it was employer's information not in her possession, and she has received it only subsequently from an anonymous source, and it was not thus in her possession, custody or power at the date of the Tribunal hearing.[14]It seems to me that the right course is for the Appellant to put on affidavit the circumstances in which she received the four page document, so that that affidavit can be supplied to the Respondent so that it can know in detail the circumstances in which she says that it(a) arrived with her and(b) had not previously been available to her. But subject to that, we give leave for this appeal to proceed, but limited to the four page document headed "STATISTICAL INFORMATION RELATED TO PRODUCTIVITY AND STAFF EFFICIENCY" which is asserted to be cogent evidence likely to cause a need for both a review hearing and the possibility that a review hearing might cause a change of mind by the Tribunal based on fresh evidence not available at the time of the original hearing.[15]The case is to be listed at the full hearing as Category C, estimated time of the hearing to be 1 hour. The Appellant is to lodge and serve an affidavit on the Respondent within 7 days of the Order.