MR A H ECE v (1) LONDON BOROUGH OF NEWHAM (2) NEWHAM REFUGEE CENTRE LTD [2002] UKEAT 1035_00_2202

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1035_00_2202Case No Appeal No. EAT/1035/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A H ECEAPPELLANT(1) LONDON BOROUGH OF NEWHAM (2) NEWHAM REFUGEE CENTRE LTDRESPONDENT
Before
Mr Justice LindsayDate 22 February 2002
[1]APPEARANCES For the Appellant MR J SYKES (of Counsel) Instructed by: Nigel Adams & Co 4th Floor 1 Knightrider Court London EC4V 5JP For the Respondents MS C GITTENS (Representative) Legal Services London Borough of Newham Town Hall East Ham London E6 2RP MR JUSTICE LINDSAY (PRESIDENT) We have before us the appeal of Mr A H Ece in the matter Ece -v-(1) London Borough of Newham(2) Newham Refugee Centre Ltd . That Second Respondent has been barred from appearing on the appeal and, accordingly, of course, does not appear.[2]The First Respondent, London Borough of Newham, earlier indicated that they were not going to resist the appeal and, although they have sent a representative, Ms Gittens, before us today, she has not been called upon to speak because, as I say, Newham indicated that they were not intending to oppose the appeal. Mr Sykes has appeared for Mr Ece.[3]We do not need to set out the whole of the history of the matter; the only matter before us is Mr Ece's Notice of Appeal, appealing against the Chairman's Decision not to review the Employment Tribunal's earlier Decision of 11 April 2000.[4]There has already been a hearing at the Employment Appeal Tribunal, by way of a preliminary hearing of a different Notice of Appeal which was directed to the substantive Decision of 11 April. The Employment Appeal Tribunal held that there was no arguable error of law on that Notice of Appeal which was, as I say, against the Decision of 11 April. But before that Mr Ece had written to the Employment Tribunal indicating that he wanted to apply for a review of the Decision of 11 April, and he wrote a letter to Mr J Scannell, who was the Chairman at Stratford who had sat as Chairman of the Decision on 11 April. His application for a review was based on two grounds: first of all, new evidence and secondly, perjury. Mr Ece, with his letter of application asking for a review, added some enclosures. His letter said, by way of conclusion:
"I understand that I can also request a review of your decision from yourself. I wish to do this."
[5]So that he was plainly putting in a request for a review. That was answered by the Employment Tribunal on 12 May as follows:
"1. I write [in] response to the Applicant's letter of 9 May. It is a two-page letter with 11 enclosures; I copy the letter and enclosures to each Respondent with this letter. The Chairman of the Tribunal which heard this case has directed that the application for a review shall be heard by the Tribunal. The Tribunal will decide whether or not to review the Decision and, if so, what form the review should take. A notice of hearing will be sent shortly. 2. All sides should note that if the Tribunal decides to grant the application for a review, it may decide to conduct the review immediately, to revoke the Decision and to rehear the case and receive evidence. All sides must attend the Tribunal prepared to proceed with the rehearing. This matter will have to be disposed of before the Remedy Hearing referred to in my letter of 18 April. Please note that whilst my letter of 18 April was addressed to the Applicant and 1 st Respondent only, this letter is addressed to the Applicant and both Respondents."
So that as far as concerned the review hearing, it was said that "A notice of hearing will be sent shortly" but in fact none was sent. No date was ever fixed for the hearing of the review application.[6]Correspondence continued between Mr Ece and the Employment Tribunal. We know that because it is referred to, but the correspondence itself is not before us. Then, on 12 June, after some further correspondence, as it would seem, the Employment Tribunal wrote again to the parties, and this time, on 12 June they said this (this particular copy is directed to Mr Ece):
"Your letter of 9 May 2000 applied for the review of the decision in this case. By letter of 12 May 2000 the Chairman, Mr Scannell, directed that the application for review should be heard by the Tribunal. No date was fixed for this application. Since writing that letter the Chairman has received considerable correspondence from you which he has read including your letter dated 7 June 2000. He has also had an opportunity to consider your original application for a review. As a result of his further consideration of your application for a review he revokes his decision that the application should be heard by the Tribunal which heard your case. In exercise of the powers contained in rule 11.5 of the Industrial Tribunals Rules of Procedure 1993 he refuses your application for a review because in his opinion it has no reasonable prospect of success."
[7]At the preliminary hearing of the Notice of Appeal which came before the Employment Appeal Tribunal the appeal against the refusal of the review application was permitted to come forward to a full hearing, and it has done.[8]As it seems to us, two aspects of that Decision are before us: one, on the merits, raises the question of whether the Chairman erred in law in holding that the review had no reasonable prospect of success. In fact, although we will deal with that side of things, it has not been developed by Mr Sykes.[9]The second aspect that is possible to be regarded as coming forward to us, and has been greatly developed by Mr Sykes, is this: was there procedural error of law lying behind the Chairman's change of approach between the letter of 12 May and the letter of 12 June?[10]Let us look first, then, at the case on the merits. The application for review, as we mentioned earlier, was put on two grounds: new evidence and perjury.

(d) and that says:

"(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) the decision was wrongly made as a result of an error on the part of the tribunal staff; (b) a party did not receive notice of the proceedings leading to the decision; (c) the decision was made in the absence of a party;"
And this is the relevant one for immediate purposes "(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" So Mr Ece, on this merits ground, had to bring himself within 11(1)(d), and in his letter of 9 May, under the heading of "New evidence" he said:
"I have now obtained Companies House registrations on Newham Refugee Centre Ltd. And also the last registered accounts of the company. I am enclosing both documents for your attention. As far as the Companies House concerns that the Newham Refugee Centre Ltd has been dormant for some time and did not register their account for the year 1999 (1 year late) and therefore breaching the Company Act. This is unlawful. A close examination of the companies registration of the directors will reveal that 7 of the directors of the NRC had resigned on 1.2.1999, and Mr Bana registered as resigned on 13.1.1999 (pages 3 and 4) so how could they be in a meeting to dismiss me on 5.2.99."
[11]Now the hearing with which we are concerned, it must be remembered, was on dates between 16 June 1999 and 10 March 2000. The date the Newham Refugee Centre Ltd made its return as to the Register of Directors to the Companies Registration Office is not given, but it is clear that it was after 1 February 1999 and before 9 May 2000, but there is nothing to suggest that it was later than 16 June 1999, or later than 10 March 2000. In other words, it was not proven to the Chairman that the evidence could not have become available until only after the conclusion of the hearing on 10 March 2000, and accordingly, so far as a review was said to lie within 11(1)(d), it was bound to fail.[12]The second heading of application for the review, as we have mentioned, was perjury. It, too, depends on the dates of the Directors' resignations. The heading reads as follows:
"Mr Ismail and Mr Suleiman gave you evidence under oath that Company Directors had a management committee meeting on 5.2.1999 to dismiss me. This fresh evidence shows there could not be a meeting of the directors as described in the document submitted to the hearing. "
Management Committee Meeting on 5/2/99 at Newham Refugee Centre". This fresh evidence suggests that this document was fabricated, and both witnesses lied and perjured themselves." So, again, the ground on which a review was sought was one which depended on the dates of Directors' resignation, and again, it was not shown that the evidence of the dates of resignation could not have been obtained by 10 March 2000, which is the date in 11(1)(d), namely the conclusion of the hearing. So that second ground, on the merits, was bound to fail.[13]There is a third possible ground in Mr Ece's letter of 9 May, and that is at the top of his second page where he says:
"I believe the only independent eye witness Mr Maya Mayavu has been put under considerable pressure not to appear at the hearings to give evidence. Both his line managers were in attendance at the hearing as well as the Chair of Newham Council, this is in itself a huge pressure on him not to attend. No CCTV cassettes produced"
If that was a point on which a review was possible, it could only be within 11(1)(e):
"the interests of justice require such a review"
But no evidence to support the suggestion of pressure on the witness was given; it was just Mr Ece's unsupported belief. A Chairman, therefore, would have been perfectly entitled to refuse to give weight to that possible third ground. Thus the Chairman was entitled, on the merits, to take the view that the review had no reasonable prospect of success, and of course, as we have cited, that ultimately was the view he did come to.[14]But he also gives comprehensive reasons for coming to that view. He deals with the argument about the dates of Directors' resignations, and after setting out his understanding, he says:
"Quite apart from the fact that the evidence is not new evidence, it is clear to the Chairman that it would have had no effect whatsoever upon the decision of the Tribunal."
So far as concerns pressure on the witness, he said this:
"You have no evidence that he has [been] put under pressure. In fact he made a statement to your representative during the hearing but he was not called. It is clear from your own letters that he now does not wish to give evidence on your behalf. Even if he did wish to give evidence on your behalf his evidence was available in the hands of your representative and could have been presented at the Regional hearing. The Chairman wishes to make it clear that the grounds upon which a Tribunal may review a decision are strictly limited. A review is not a method by which a party to proceedings can get a second "bite of the cherry"
. The review provisions are not intended to provide parties with the opportunity of a re-hearing at which the same evidence can be rehearsed with different emphasis or further evidence produced which was available before ( Stevenson v Golden Wonder Ltd [1997] IRLR 474)."[15]So, just looking at the merits side, which Mr Sykes has not developed, but which we, just to be comprehensive, feel needs to be dealt with, we detect no error of law on the merits side of the case, in the Chairman's conclusion that the application for review had no reasonable prospect of success. But was there, though, procedural error in the change between the first letter that he wrote, and the second letter that he wrote? This requires one to look at sub-rules (5) and (6) of Rule 11; (5) says this:
"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."
The obvious point of that is to stop cluttering up the Employment Tribunal with applications for review which have no reasonable prospect of success. They do not even get heard by the whole panel which originally heard the matter; it is dealt with either by the President or by the Chairman of the Tribunal that heard the case or by a Regional Chairman, and they are entitled to conclude, of a review application, that it has no reasonable prospect of success, and they do so ex parte, simply in writing in most cases, simply upon reading and studying the application for a review. There is no question of notice being sent out to the other side, or further notice being given to the person who is the applicant. So that is 11(5).[16]11(6) goes on in a case where that has not been done:
"If such an application is not refused under paragraph (5) it shall be heard by the tribunal which decided the case, or - (a) where it is not practicable for it to be heard by that tribunal, or (b) where the decision was made by a chairman acting alone under rule 13(8), by a tribunal appointed by either the President or a Regional Chairman."
And (7) goes on to say what can happen if there is such a full Tribunal hearing the review application; it can vary or revoke the decision and so on.[17]Now it is to be noted that Rule 11(5) provides no deadline by which time the Chairman's power to refuse, if to be exercised at all, has to be exercised. It does not say that the power under 11(5) cannot be exercised if some indication has been given under Rule (6). It does not say that the power cannot be declined once and then exercised after all. There is nothing to say that the power under 11(5) is spent once a general indication has been given that there will be a hearing under 11(6), still less, of course, that 11(5) is spent even before a notice of hearing is given under 11(6). There is no time beyond which the ability to refuse under 11(5) becomes specifically inoperative, except impliedly, from the terms of Rule 11(6), that power under 11(5) must become inoperative once the hearing of the Tribunal under (6) has been started. That is, impliedly, the final point at which the power under 11(5) must become incapable of exercise. There is no need, as it seems to us, to imply some time limit that is not expressly put there, or even to create a reference to some events or circumstances which are not expressly referred to.[18]It could, indeed, be quite unjust and very inflexible to import something which is not there. It is quite easy to imagine circumstances in which, at first sight, an acceptable ground for review has been shown, but one which, on further study, becomes apparently and incontestably, a bad ground for a review. One can imagine a circumstance, for example, in which the person seeking the review describes some new evidence and, convincingly enough, suggests that it had not been available by the conclusion of the hearing but in which later developments make it quite plain that it had been available, incontestably, by the conclusion of the hearing. One can imagine another case, for example, one falling under 11(1)(b), where a party asserts that they had not received notice of the proceedings leading to the decision in which, when the Chairman or the office first looked at the matter, that looked to be a good ground; but which, on a little further investigation, turns out to be incontestably a bad ground, in other words that it is later shown, compellingly, that notice had been given of the proceedings.[19]Now, in such cases, it would be absurd and inflexible to have to proceed with a full three person Tribunal hearing under Rule 11(6) when it had become plain that the application for a review had no reasonable prospects of success and therefore, could and should have been refused under Rule 11(5) by the Chairman alone in the first place. We have to conclude that, until the hearing of a review application begins by the Employment Tribunal that heard the case, where that is a practicable thing to be done, the Chairman's power under Rule 11(5) remains open to be exercised by him. Of course, in the case here it was exercised by him not only before the hearing of the review application had begun but before even notice of a date for that hearing had ever been given to the parties.[20]Mr Sykes has taken us, with admirable clarity, to a series of arguments, but they all depend on an extremely formalistic view of the ability of the Tribunal to respond in a practical and sensible way to the situation as it develops. He urges that the mere indication that appeared in the earlier of the two letters was sufficient to preclude any later exercise of Rule 11(5) and he also urges that the Chairman's indication that he was revoking his earlier Decision was a thing that the Chairman was not entitled to do. There is no doubt at all in our minds that it is not to be encouraged, and that it is unattractive, that the matter should have been dealt with as it was, but, strictly in terms of what is open to a Chairman to do, as we see it, as we have mentioned, the power under 11(5) is not entirely spent until the hearing under 11(6), if there is to be one, actually begins. Accordingly, we see no error of law in the Chairman's Decision and we dismiss the appeal.