MISS MICHELLE DIANE CAVANNAH v THE BOROUGH OF BLACKBURN [2000] UKEAT 457_00_1907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 457_00_1907Case No Appeal No. EAT/457/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS MICHELLE DIANE CAVANNAHAPPELLANTTHE BOROUGH OF BLACKBURNRESPONDENT
Before
Mr Justice KeeneLord Davies of CoityDate 19 July 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON MR JUSTICE KEENE : This is a preliminary hearing of an appeal to see whether a reasonably arguable point of law is raised by it. The appellant appeals against a decision of an Employment Tribunal, by way of its chairman, sitting at Manchester and dated 20th March 2000. By that decision the Chairman refused an application by the appellant for a review of the Employment Tribunal's decision entered in the Register on 4th January 1996. The reference to that date alone indicates that there is a certain history to this matter. The details of that history are set out in previous decisions of this Appeal Tribunal dated 3rd May 1996, 16th March 1998 and 30th April 1999, and we do not propose to rehearse them here.[2]But putting is shortly, Miss Cavannah brought a complaint of unfair dismissal in the Employment Tribunal, at that time called an Industrial Tribunal, in April 1995 claiming that her dismissal in October 1994 was unfair because her problems over her job arose from nausea and dizziness caused by the time which she spent working on a computer incorporating a VDU. Her application was dismissed on 4th January 1996.[3]She sought a review of that decision, but the Chairman refused to review it. She appealed to the EAT, but on 3rd March 1996 the appeal was dismissed.[4]Some eighteen months later, Miss Cavannah again sought a review of the January 1996 decision. That review was again was declined.[5]Once more she appealed to this Appeal Tribunal, but her appeal was dismissed on 16th March 1998.[6]After a further six months, the appellant again sought a review of the January 1996 decision, this being her third attempt. It was refused on 30th September 1998. Again, she appealed to the EAT which by a decision dated 30th April 1999 dismissed her appeal. Giving the judgment of this Appeal Tribunal, the President, Lindsay J, drew attention to Rule 11(4) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993 , Schedule 1, which provides that an application for a review may be made either at the hearing or "at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties". That period expired, in the present case, in mid-January 1996. It is clear from that Rule that the process of a review is intended to be something which takes place shortly after the decision itself has been promulgated.[7]Finally, Miss Cavannah has made a fourth application for a review. By a letter dated 16th February 2000 she raised a number of points about alleged failures on the part of her former employer to provide a safe system of work, to comply with capability procedures and with the Management of Health and Safety at Work Regulations 1992 and the Health and Safety Display Screen Equipment Regulations 1992 . There was also an allegation that the Employment Tribunal erred in its approach to the investigation of her complaints by her employer.[8]The Chairman in refusing a review on the ground that it had no reasonable prospect of success, noted that this was the fourth occasion on which Miss Cavannah had sought a review. He went on to say:
"2. This application is significantly out of time and is yet a further invitation by the applicant to the Tribunal to reconsider the merits of its substantive Decision. 3. The applicant's letter dated 16th February 2000 suggests that all the information contained in that letter was available to the applicant on the date of the Hearing. 4. Having regard to the number of unsuccessful appeals which the applicant has now made to the Tribunal to review its Decision and also her own unsuccessful appeal to the Employment Appeal Tribunal it appears to me that the applicant is embarking on a wholly misguided crusade to persuade the Tribunal to reverse the Decision which has been upheld by the Employment Appeal Tribunal and which was entirely justified on the basis of the evidence presented to the Tribunal."
[9]We agree with those comments. Generally the matters raised by the appellant do not amount to new evidence unavailable at the time of the hearing and not known about at that date and consequently they fall outside Rule 11(1)(d).[10]This morning Miss Cavannah has sought to rebut that by referring to the fact that she now has new evidence in the shape of a certificate awarded by the Royal Society of Arts for a distinction in passing its test in text processing, something which was achieved by the appellant in 1997. Consequently, Miss Cavannah submits, that that is evidence indicating her capability.[11]The problem with that, however, is that that is something which was achieved after dismissal. The employer had to judge the situation when considering whether or not to dismiss at the time of dismissal back in October 1994. This is not new evidence about the state of affairs in 1994, which is what all the references to new evidence mean. It seems to us that the appellant has misunderstood the references to new evidence which have been made by Employment Tribunal Chairmen and by this Appeal Tribunal in the past. The evidence to which the appellant now refers is evidence about a later achievement on her part and it really can form no part of any challenge to the decision to refuse a review.[12]It is important that there should be finality in all litigation, including unfair dismissal complaints and it cannot be said that, given the history of this matter, the interests of justice require a review.[13]There is, in our judgment, no reasonably arguable point of law raised by the appellant about the Chairman's decision of 20th March 2000 which seems to us to be fully justified.[14]We would, in closing, only reiterate the remarks made by the President at the end of the judgment of this Appeal Tribunal on 30th April 1999, when he asked Miss Cavannah to reflect upon the waste of time and resources caused by launching hopeless applications. We cannot think that it is in her best interests to be pursuing this hopeless cause, year after year, absorbing a great deal, no doubt, of her time and attention. We do suggest that she consider whether she herself would not benefit from putting this unhappy episode behind her and seeking to start afresh, looking to the future rather than to the past.[15]We give that indication of our views on this matter, because we are not unsympathetic in some ways to the appellant's situation. Whether our well-meant advice will be taken, we know not. Having said that, this appeal must be dismissed.