MR P SCOTT v BELLARD ELECTRONICS LTD [2003] UKEAT 1379_01_1401

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 1379_01_1401

Case No Appeal No. EAT/1379/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR P SCOTTAPPELLANT

BELLARD ELECTRONICS LTDRESPONDENT

Before

Mr Justice Burton

Date 14 January 2003

[1]APPEARANCES For the Appellant The Appellant in person For the Respondent No appearance or representation by or on behalf of the Respondent THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is the hearing of an appeal by Mr P Scott, primarily against the refusal by the Employment Tribunal at Liverpool on 17 April 2001 of his application for review of an earlier decision by that Tribunal at a hearing on 31 March 2000, in a decision handed down on 12 May 2000. We say primarily because in addition, there is an appeal by the Appellant in respect of an Order for costs made against him at that earlier hearing on 31 March. We shall first deal with the substantive matter, namely the appeal against the refusal of the application for review..

[2]The application for review arose out of the fact that the Appellant had not attended at the hearing on 31 March 2000, but, certainly as put before us, his non-attendance at that hearing was not the main ground, indeed it hardly featured at all as being any ground, for there being such a review. His prime ground for review was the availability now to him of material fresh evidence which had not been available to him at the time of the hearing on 31 March 2000.

[3]In those circumstances, we do not propose at any length to go into the circumstances in which he did not attend on 31 March. The Appellant thought that it was appropriate that he should not attend because he did not wish to tell his new employers of the existence of the application and, in essence, took the risk of an unfavourable decision by knowingly not attending. It is right that the date was not quite the date that he had been led to expect by the Tribunal, but it is apparent that he knew of that date, and that his objections to attending applied as much to any later date, or at any rate any later date if it was in April, as it did to the 31 March date which was in fact the date set by the Tribunal. His case is that he was not acting high-handedly in not attending, but that he had what he has described to us as being a good reason, which he believed should be accepted, for asking for the matter to be adjourned. The Respondent took the view that the Appellant had no case anyway, and that his refusal to attend was part and parcel of an absence of case. The Tribunal appears to have taken the view that his non-attendance, notwithstanding knowing of the hearing and, in the light of refusal of an adjournment, was an act which merited the imposition of a Costs Order of £500 upon him.

[4]The result, however, whichever of those three positions is the correct analysis, and for reasons which will appear, we do not propose to resolve that question today, was the dismissal of the Appellant's application. That application on 31 March 2000 was for unfair dismissal and, in particular, automatic unfair dismissal, in respect of which there is no qualifying period, which was necessary in his case because he had not been employed long enough to qualify for what one might ordinarily call "normal unfair dismissal" under sections 94 and 100 of the Employment Rights Act 1996, on the basis that he, on his case, was dismissed because he was carrying out, or proposed to carry out, activities in connection with preventing or reducing risk to health and safety at work, and/or was complaining, or bringing to the attention of the Respondent, matters about which he concluded that there were risks and dangers. That application was dismissed in his absence.

[5]The summary of the facts on which the Tribunal reached that conclusion, based upon the evidence of the Respondent, can be put very shortly. He was an unsatisfactory employee; he was informed of certain matters of indiscipline or misconduct or unsatisfactory behaviour. On 27 October 1999 he made the comment that he expected this and was not surprised, and ten minutes later, and not before, he returned, having been dismissed, to produce a letter which carried a date antedating by three days the dismissal date of 24 October, raising alleged health and safety problems. As to the contents of such letter:-(1) they were untrue, as could be seen from a letter, which was relied upon by the Respondents before the Tribunal, from a Mr Cadwallader of the Director of Estates of the Leighton Hospital; and

(2) whether or not they were true, in any event, they were cooked up subsequent to dismissal in order to try and justify a claim, and had not been aired before his dismissal; and thus there could not possibly have been a finding under section 100, this was a perfectly justified ordinary dismissal and the lack of a qualifying period prevented the Appellant from complaining. That was the finding of the Employment Tribunal.

[6]The Appellant had, in putting forward his reasons as to why he wanted an adjournment, not only relied upon the fact that he was in new employment, but also that he sought a Witness Order, and that had been done in a letter received by the Employment Tribunal on 27 January 2000, and he sought a Witness Order, among others, for a Mr John Galvin, who was still at that date in the employment of the Respondents and, indeed, in the capacity of Service Manager. The application to the Employment Tribunal recited that Mr Galvin was present on the day of his dismissal and would confirm that he was dismissed for raising health and safety concerns.

[7]What the Appellant raised however, was that, as Mr Galvin and, indeed, the other witnesses whom he wished to call, were still employed by the Respondents, he wanted a Witness Order. The position of the Respondents was that they were, at that stage at any rate, not prepared to release information from, at any rate, two of the three witnesses; they did not identify which of the three was the one who had not yet, at any rate, on the basis of their letter of 10 January 2000, fallen into line and also refused to be approached.

[8]That application for a Witness Statement was refused by the Employment Tribunal on 28 January 2000. The reasons given are as follows:

"If you call a Witness you cannot cross-examine them if they do not say what you hoped they would say. With your consent your letter dated 25 January 2000 could be sent to the Respondent for their consideration. If they chose to call the witnesses themselves you can cross-examine them. If they do not your evidence may be the best evidence before the Employment Tribunal"

It is, of course, to be entirely fair to the author of that letter, the case that very little had been disclosed by the Appellant at that stage as to what evidence he hoped to adduce from Mr Galvin. What is, however, clear, and has been made clear subsequently by Mr Galvin himself, is that at that stage Mr Galvin was not in a position to give, and would not have given, evidence for the Appellant without a Witness Order, and there was thus no Witness Order made.

[9]Since the Decision by the Employment Tribunal on 31 March 2000, events have gathered pace, so far as concerns the Respondent. Mr Galvin has left the employment of the Respondent in very controversial circumstances and, indeed, there was as we understand it, a Court Order preventing Mr Galvin from disclosing information to anyone, never mind the Appellant. But what has now occurred is that Mr Galvin is no longer employed by the Respondent and has been willing and able to disclose information to the Appellant, and we have before us, as indeed the Employment Tribunal had before it on the review application, a statement dated 27 July 2000 from Mr Galvin.

[10]If the evidence that he is said to be willing to give is correct, he confirms the following:(1) that there was no substance in the allegations of no, or, at any rate, insufficient, substance in the allegations about the unsatisfactory nature of the Appellant's conduct if, indeed, there were any such allegations;

(2) The letter from Mr Cadwallader, which was relied upon by the Respondents before the Tribunal, was, in Mr Galvin's belief, false; Mr Galvin goes so far as to say that the letter contains knowingly false information, and he, as Service Manager of the Respondent, asserts the facts to the contrary.

(3) He further produces, and has made available to the Appellant, a fault list written by a Mr Boote, an employee of the Respondent, who spent three weeks at the Leighton Hospital attempting to correct what Mr Galvin described as "twenty three health and safety hazards" which goes to contradict the Respondent's evidence and, in particular, the contents of the letter of Mr Cadwallader.

(4) Against that background, he confirms that the Appellant showed him two letters of 20 October and 24 October 1999, written to his then employers, the Respondent, containing serious complaints regarding electrical safety; and that he saw both of those letters handed to Mr Clarke of the Respondent, prior to the Appellant's dismissal; and that a Mr Harris of the Respondents said to Mr Galvin "Who the fuck does he think he is coming here stirring the shit over health and safety, I am going to get rid of him." He would state that it was against that background that he was present when the Appellant was dismissed by Mr Harris, and that it is not true to say that the Appellant returned shortly afterwards with an antedated letter; but rather that he had already witnessed the letter handed over some days earlier.

[11]That is plainly very material evidence, going to show that the case put forward by the Respondent, if that evidence is believed, is not right; and the availability of material fresh evidence is a substantial ground for granting an application to review. But, of course, an important requirement is that that material fresh evidence should not have been reasonably available to an applicant, in relation to the decision which he now wants to set aside, and the more so where there is, at any rate, an arguable case, and one which so far has convinced the Tribunal, that the failure to attend on the earlier occasion was a deliberate one and could not be excused.

[12]We are entirely satisfied on what we have seen, at any rate sufficient to amount to an arguable case with regard to the grant of an application for review, that this is material evidence which could not have been reasonably available to the Appellant. The statement of July 2000 plainly revealed a great deal that was new to the Appellant, not just the letter from Mr Boote, but also the information about Mr Cadwallader's letter, if Mr Galvin's evidence be correct, and of course, the evidence which goes to substantial corroboration of his case, when earlier all he had been able to say was that Mr Galvin was present when he was dismissed, and knew that he had been dismissed for raising health and safety problems. Can it be said that the content of Mr Galvin's statement of 27 July 2000 could have been reasonably available earlier, even leaving aside the fact that he would not have been able at that stage to have had the Boote letter, and it may well be not the information about the Cadwallader letter?

[13]It appears to us that the refusal by the Tribunal of the Witness Order, and the fact that Mr Galvin thus remained an employee of the Respondents at all times until 31 March 2000, means that that evidence was not reasonably available to the Appellant; and even if he had attended on 31 March 2000, he would not have had that evidence available, and would therefore have been in the same state, perhaps therefore losing straightforwardly, in any event, because he would not have been able to have done anything other than use his own word to counter the evidence of the Respondents, assisted by the Cadwallader letter, if, in fact, he had taken that course rather than the inadvisable course of not attending at all.

[14]We are satisfied, therefore, that his failure to attend, even if it can be laid fully at his door, is not an answer to the fact that this evidence was, in any event, not reasonably available to him, or at any rate, arguably so, as at 31 March 2000, and it is sufficiently strong to merit the bringing on of a review application. What happens at that review hearing, whether Mr Galvin's evidence is believed, as against that of Mr Harris, will have to remain entirely in the hands of the Employment Tribunal, but we are satisfied that there should be a review, and we make an Order to that effect, allowing the Appellant's appeal.

[15]So far as the costs are concerned, there will now be a review of the result of the hearing on 31 March 2000. We take the view that that Costs Order, made in his absence, may have been unfair and inappropriate, and we are satisfied that the right course, in the light of our conclusions, is to set it aside, but without prejudice to the right of the Respondent to apply again for such costs at the outcome of the review, depending, of course, on the findings which by then will be clear to the Tribunal hearing the matter.

[16]It may be that the Tribunal conclude that the refusal by the Appellant to attend on that hearing on 31 March would of itself merit a Costs Order; it may be, on the other hand, that conclusions that were made by the Tribunal were inappropriate, certainly in his absence, and that the reality is that his conduct was not such as should merit a Costs Order, particularly if his allegations be right.

[17]If the simple fact was his non-attendance, then it appears difficult to justify making a Costs Order, because if the unfair dismissal application was properly rejected, it hardly would appear to add to the costs if he was not present; if anything, he would probably have reduced them. If, on the other hand, his non-attendance was part and parcel of a wholly unmeritorious approach to the entire application, then that might well merit the costs, but, of course, that will depend on the reconsideration of the case, which may not be given by the Tribunal on the review which we now order. So, therefore, to that extent, the appeal against the Costs Order is also allowed.

[18]Now, the only matter that remains is as to whether the matter is now sent to a fresh Tribunal for the review or whether it is left with the same Tribunal to hear. I do not know whether the Applicant has anything to say about that; of course it may be that if the same Tribunal finds that it has been misled by the Respondent on the earlier occasion, they may be really quite cross, so that it may be that the Applicant would be just as well off with the present Tribunal as with a new one, but we shall hear what he has to say [Further argument follows].

[19]We will take the exceptional course in this case of ordering, as the Appellant requests, a fresh Tribunal. We are persuaded that, although it is plain that this Tribunal were acting on the evidence that was before it on the first occasion, and, although a review is what it says, namely that, normally, one would expect the original Tribunal to reconsider its earlier decision, nevertheless, in this exceptional case, we shall take the course of ordering, in particular bearing in mind the fact that according to the Appellant Mr Coventry retired, of ordering that this review take place before a different Tribunal.