Hiero v Changework Now Ltd (Practice and Procedure : Review) [2011] UKEAT 0424_10_1905

EAT
Hiero v Changework Now Ltd (Practice and Procedure : Review)
[2011] UKEAT 0424_10_1905 · 2011-05-19
[1]This is an appeal from the refusal contained in a letter dated 10 June 2010 of Employment Judge Trickey to review a previous judgment of an Employment Tribunal presided over by himself and two lay members, Mrs Wood and Mr Selby. The case had taken place over two days in September 2009 and the Employment Tribunal considered its judgment on a further day, also in September. The written Reasons for the judgment were sent out to the parties on 12 October 2009. It was accepted that the Appellant was disabled and so the issue was whether there had been disability related discrimination and that was rejected by the Employment Tribunal.[2]By an application for review of 20 April 2010, which is at page 17 the Appellant, drew attention to material that had come into his possession a few weeks before then and on that basis applied for the review.[3]Throughout the proceedings, which have their origin in events in 2007, the Appellant has represented himself and he has done so again at this hearing. The Respondent was represented today by Mr James Murphy of People Asset Management Ltd and he certainly represented the Respondent at the hearing in September 2009 and, I think, in the previous proceedings that had been heard by Employment Judge Griffiths in 2008, and which were the subject of a previous appeal. It will be appreciated from what I have just said, therefore, that the case has a considerable history.[4]It is important to understand the extent to which this case turned on the chronology of events. The Respondent’s case was that the Appellant had been offered a job on 17 October 2007 and that job offer had been withdrawn on 23 October 2007 after a discussion by the management team of the Respondent in a regular management meeting, which discussed how to address the loss of business. The Respondent’s case is that when the offer was withdrawn due to an unexpected change of circumstances, namely the loss of business, the Respondent had not received a questionnaire from the Appellant giving details of his disabilities, so that critical though one might be of an offer made and withdrawn within the space of about a week, the withdrawal had nothing whatsoever to do with the Appellant’s disabilities for the simple reason that they were unknown to the Respondent until after that meeting had made the crucial decision. The Claimant’s case is that the Respondent had known about his disabilities and it was for that reason that the offer had been withdrawn.[5]A good deal of debate took place at the Employment Tribunal about various dates. There was some uncertainty on both sides of the argument as to when particular things had happened. At paragraph 27 of the judgment, the Employment Tribunal concluded that the Respondent had held a management meeting on 23 October 2007; that a genuine note or minute of that meeting had been made; and that one of the senior managers (and possibly a director and shareholder of the Respondent), Ms Lesley Nash, had faxed, emailed and telephoned the recruitment agency on 23 October 2007, at which stage the questionnaire giving details of the Appellant’s disabilities had not been received. Accordingly the Employment Tribunal reasoned that the Respondent did not know of the Appellant’s disability and consequently his case failed.[6]At the hearing in September 2009, the Appellant had produced, albeit quite close to, if not at, the hearing an email from Ms Alison Price. The email is at page 67 of our bundle. It replies to an email sent by the Appellant and it reads:
“I have checked my file on Change Work Now [that is the Respondent] and can confirm that the date that I sent the email that you have attached was 18/09/2007 not the 22/10/2007. Lesley Nash replied on the 4/10/2007 and I then sent a formal letter cancelling the contract on 29/11/2007. I do have evidence to confirm this information if you require this but feel that it would only be appropriate to share this if I receive a formal request from the legal parties involved in the tribunal due to the potential confidential nature of the information.”
[7]The Appellant also had the document at page 65. The document is entitled ‘Inbound Email: Wyeth’. It tells us that the date the email was sent was 22/10/07 and we understand the time it was sent to be recorded at 10:16. The next line records the date of receipt as 22/10/07 and the time of receipt is 10:23. It is said to have been filed on 26/10/07. The subject is said to be ‘Wyeth’ and it reads:
“Dear Lesley Apologies for not being in touch earlier but there have been some significant changes here at Wyeth this year which have impacted on the HR workload. Now that I have been in post for 6 months, I have had a chance to review most of our processes and I can confirm that unfortunately we will not be continuing with the Change Work Now system. When your system was implemented, we were growing the Pharma sales side of the business and your system was particularly tailored to this. This part of our business has changed significantly and we are now using a 3 rd party contractor for most of our sales recruitment which means that the system is no longer aligned to our business needs. In addition, I think we mentioned to you in our meeting earlier in the year that our European HQ are working on an on-line recruitment system for all of the local affiliates so we do not have approval to continue to invest in stand alone systems. I have looked at your contract and believe that we have a 90 day termination clause. Please can you confirm that this is correct and I will then send you a formal notification of our decision to cancel the contract.”
[8]Another document that was before the Employment Tribunal in September 2009 comprised some pages of minutes of a meeting said to have taken place on 23 October 2009 between senior managers. It appears at pages 70-74 of the bundle. It is entitled ‘Management MTG’, dated 23/10/07 and three people are recorded as having been in attendance. Under the heading, ‘Financials & forecast’ and the subheading ‘Client update opportunities’, the following appears:
“email from Wyeth on 22 nd /10 giving notice – 90 days termination therefore end January. Annual revenue loss = £42k. Chance of salvaging? No – global online system [illegible word] corporately from US/Europe.”
[9]There are then, under other subheadings, references to other entities, which we think could confidently be deciphered as Sainsbury’s, the City Inn and Woolworths. On the next page there is a revised forecast and then at page 73 in a box there is:
“Made offer last week!! Not heard yet – what’s more important? Now? Next 6 mnths? App developer more critical. Action? Could WH do App developer role? – Skillset different. Alternative Role. No. [and then in a box ] Withdraw offer [and in another box] A [circled] LA to contact agency.”
[10]The focus of the argument at the Employment Tribunal was as to the genuineness of those notes. As we have indicated earlier it was the Appellant’s case that they were a fabrication and that no such meeting had taken place. We have been asked to consider some parts of the notes of evidence, both of the hearing in September 2009 and of the earlier hearing that had taken place in 2008. Whilst we do not think that the notes relating to the hearing in 2008 are particularly helpful, we have had drawn to our attention the bundle index for that hearing. Document 13 on that document index, which appears at page 81 of our bundle, refers to and describes, “Email from Wyeth to ChangeWork Now Ltd termination of Services 8/10/07”.[11]When Mr Peter Nash gave evidence in the hearing in September 2009 it seems he was still under the impression that the original email had been received on 8 October 2007. He was asked, according to the transcript of the note that appears at page 90 of our bundle, by the Appellant, “Can you please explain why page 25 says 22 nd October”, and his answer is recorded as, “This is a forwarded email the original was received the 8 th October”. Mrs Lesley Nash gave evidence and Mr Murphy’s notes of her evidence are at page 92:
“WH: You were not aware of business implications before Oct. LN: We were aware that Wyeth had asked for our terms of business and that J Sainsbury’s were reviewing Oracle who had a competing product. EJ: You know about the loss of business before recruiting” [and she answered] “No we started recruiting in early summer.” 12. The Appellant made a reference to the Wyeth data document B, following which the Employment Judge asked: “EJ: Do you recognise this document? LN: I do I received a request from Wyeth in early September for our terms of business and they terminated our Services in November. EJ: What do you say about B? LN: I advised her Alison Price (Wyeth) of our terms being 90 days. WH: Why is the document dated 22 nd October? Is it a false document? You say the original request in early September and why was it discussed on 23 rd October? LN: On its own Wyeth was a relatively small piece of business on its own we could manage without the Wyeth business particularly compared to boots value £200k.”
[13]The Appellant is then recorded as saying, “18 th September email received from Wyeth”. Mr Murphy interjects to object about the Appellant making statements and the notes go on to consider allegations that there was no management meeting.[14]It should be noted that the witness, Ms Lesley Nash, went on to consider the value of various potential and actual contracts and to state that there was a bottom line figure of £382,000. Our understanding is that that was meant to be an estimate of the potential loss of business at that time.[15]The Employment Tribunal found, as we have already indicated, that the Respondent had held a meeting on 22 October. This is all dealt with in paragraph 27 of the Employment Tribunal’s judgment at page 43 of the bundle. Rather than attempt to summarise it we will quote it in full:
“The claimant alleges that the minutes of the Respondent’s meetings were a fabrication. We have looked at these in some detail and they do not give that impression at all. The notes set out considerable detail as to the Respondent’s financial and business situation. The reasoning appears logical and our experience shows to us that these are genuine minutes of a meeting conducted on 23 October 2007 and that they are more likely than not to reflect the true situation as occurring at that meeting. Furthermore we accept the evidence of Lesley Nash of her telephone conversation, faxed letter and email to Ashvinda Bhamra of 23 October. In our judgment this conversation took place on that date and the documents were faxed and emailed on that date. What action was precisely undertaken by Ms Bhamra and on what date immediately after then is not of such relevance. The question for the tribunal is did the Respondent know of or should the Respondent have known of the disability at the time of the decision to withdraw the employment offer? Our finding is that the Respondents were telling the truth over this. We could not accept that there had been a fabrication by them of the documentation or of the dating of documentation. The Respondents had no information as to the Claimant’s disability until receipt of the documentation on 24 October which was after the decision taken at the meeting and after the communication of the decision to the agency. We accept the evidence of Mr Nash that he did not see these documents at any time. Lesley Nash knew that the documents had been received on 24 October because an administrator named Danka had told her. This administrator was instructed to file the documents.”
[16]It is against that background that the application for review was made. The letter seeking a review is at page 20, it is also easier to set it out in full rather than attempt to summarise it:
“In reference to your letter dated 28/04/2010 my answers are as follows: 1. Exhibit WH/1 is attached as Wyeth1.jpg 2. Time extension is requested as new evidence was provided by the Police dated 16/03/2010. These documents were not available at any earlier time, but are very important for the case. 3. In the reasons for judgment provided after the hearing we can read that Judge Trickey decided that there was no evidence for my claim that email sent to Alison Price was fabricated. The date on provided by Respondent copy of this email (exhibit WH/1) shows that it was sent on 22 nd October 2007 at 10:16 and then received on 22 nd October 2007 at 10:23. Exhibit AJP/1 shows exactly the same time when the document was sent, that is 10:16, but the date of this document is 18 th September 2007 and it is not 22 nd October 2007. It provides without any doubt proof that the date was changed intentionally with remaining the same time of sending. As the document WH/1 is fabricated (the date was changed by Respondent from 18/09/2007 to 22/10/2007) the document Management Meeting Minutes dated 23/10/2007 (cwn_mm1 – cwn_mm7.jpg) is also fabricated. It refers to the date 22/10/2007 on page cwn_mm3.jpg as the date when Respondent was emailed about loss of Wyeth contract. In fact they were informed about this on 18/09/2007 and not 22/10/2007. This means that written notes from Management Meeting Minutes were made when the fabricated email (exhibit WH/1) was prepared or after it was prepared and not on 23 rd October 2007 as it is confirmed by Lisa Astbury on page cwn_mm2.jpg. This is evidence that Management Meeting dated 23 rd October 2007 never happened and is only prepared by Respondent as a very powerful way to mislead the Employment Tribunal. These facts were not available at the time of the hearing, but provide evidence of Respondent’s fabrications of some records and events referred in the final judgment. 4. All the documents provided by the Police were available after long investigation and required getting statement from Alison Price, who was a third party for the case.”
[17]As will be appreciated from consideration of the terms of the email application, it was couched as an application relating to new evidence. Under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Statutory Instrument 2004/1861, provisions regulating applications for review and reviews appear at rule 34 of the Rules which are set out in Schedule 1.

(d) and (e) read as follows:

“(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; or (e) the interests of justice require such a review.”
[18]Employment Judge Trickey plainly regarded the email at page 20 as an application for a review, but he did so by looking at it in terms of rule 34(3)(d) but not 34(3)(e). Once again it will be simpler to quote the terms of the letter of 10 June 2010 in which Employment Judge Trickey’s refusal of the application together with his reasons for refusal are communicated to the Appellant:
“Your application for a review has been referred to Employment Judge Trickey who has refused the application because he considers that there are no grounds for the decision to be reviewed under Rule 34(3) and that there is no reasonable prospect of the decision being varied or revoked. The Judge states that the reasons for refusal are as follows:- 1. The 14 day time limit for making the application is extended to the date of the application on 20 April which in the circumstances I consider to be just and equitable and in the interests of justice. 2. The application is accepted as having been made with reference to Rule 34(3)(d). 3. The evidence now produced by the Claimant does not constitute new evidence becoming available since the conclusion of the hearing which could not have been reasonably known of or foreseen at the time of the hearing. The evidence relates to the sending of an E-mail by Alison Price to the Respondent which in one instance is shown to have been dated 18 September 2007 and in another 22 October 2007. My notes of the hearing show that questions as to the dating of the E-mail were raised at the hearing by the Claimant in cross examination of Mrs. Lesley Nash who agreed that the E-mail could have been sent on 18 September as stated by Alison Price in an E-mail to the Claimant. It was put to Mrs. Nash that the document shown to be dated 22 October was a false document, which she denied, saying it was the copy forwarded internally to her filing system. 4. The Claimant knew of the two different dates for the E-mail at the time of the hearing and had full opportunity to cross examine the Respondent’s witnesses. 5. The subject matter of the evidence now produced was available at the time of the hearing. Even if this evidence were to be considered in any way “new” it could not have an important influence on the result of the case.”
[19]The Appellant’s grounds of appeal are essentially twofold. Firstly that the Employment Judge erred in rejecting the evidence as new evidence, and secondly erred in failing to consider whether it was in the interests of justice to have a review, even if the evidence did not qualify as new evidence, either within the terms of paragraph (d) of rule 34(3) or having regard to the guidance given by the Court of Appeal in the case of Ladd v. Marshall [1954] 1 WLR 1489 .[20]In order to understand the contents of the letter of 20 April 2010 it is necessary to refer to some other documents. At page 79 is a witness statement made by Alison Price to Thames Valley Police on 16 March 2010. It produces as exhibits a set of documents labelled AJP1 and AJP2. These appear as to the former at page 75 and as to the latter at pages 76-78 of the bundle. What has been pointed out by the Appellant to us is that if one looks at page 75, which is the email from Alison Price to Lesley Nash of 18 September 2007, one can see that it is timed at 10:16 and that if one looks at page 77, one can see that the same email is timed at 10:23 on the same date. The Appellant does not suggest that there is anything odd or sinister about that. Page 75 is the original email sent from whatever computer was being operated by Alison Price or being operated at her instructions within the Wyeth organisation, and 10:16 is the time that that computer sent it out. Page 77, which is timed at 10:23, represents the time that it was received at the Respondent’s computer. The Appellant accepts that some of this ground was covered in the hearing in September 2009. He had obtained from Alison Price the information that is set out in the email to which we have already referred at page 69 of the bundle, which email Alison Price had sent to him on 22 June 2009. He made what use he could of that information.[21]He accepts that therefore he knew from June 2009, some three months before the hearing in September 2009, that Alison Price was saying that the email she had sent had been sent on 18 September 2007 and not on 22 October 2007. He appreciated that she had the documentation. He was put off, however, by the last two lines of her email from pursuing the matter because of his inexperience in matters of litigation, which, although it was growing by the time he came to conduct the case in September 2009, was nevertheless still not sufficient for him to appreciate that the right course might be to issue a witness summons of one sort or another against Alison Price to produce the documentation and/or to attend at the hearing.[22]The result was that the discrepancy between the information that there had been an email sent on 18 September 2007 and the document on page 65 of our bundle, which seemed to show that the email had been sent on 22 October 2007, was caused by the fact that the email had been forwarded internally. The evidence was that Ms Nash had explained the discrepancy perhaps somewhat briefly by reference to an internal forwarding process. The actual reference to forwarding does not come, however, in Ms Nash’s evidence; it comes in the evidence of Mr Peter Nash, to which we have already referred (see page 90).[23]The Appellant made a number of other submissions, the most significant of which for our purposes was that page 70 plainly suggested that there had been an email from Wyeth on 22 October and did not suggest that there had been an email at a time nearly a month before.[24]Other points raised by the Appellant related to matters which seem to us to be somewhat peripheral to the main issue relating to the email. The Appellant’s main point was that if the Employment Judge had appreciated that the email said to have been forwarded, namely page 65 of the bundle, had exactly the same timing but on the different date of 22 October 2007 as the sending and receiving times in respect of the email of 18 September 2007, he would have understood that this was a point that had never been ventilated and certainly bore on the question as to whether the Tribunal had been correct to conclude that there had been a meeting on 22 October and that the notes of the meeting were genuine.[25]Mr Murphy, who appeared on behalf of the Respondent, emphasised to us the amount of time already taken up by this litigation, the strain that it imposed upon a relatively small Respondent company and above all that this was all material that had been ventilated certainly on one occasion, that is to say September 2009, if not on the earlier occasion in 2008 as well, and that there was a clear finding, represented by paragraph 27 of the judgment, that was not affected by this material. Accordingly, he submitted that the Employment Judge had been quite right to refuse a review.[26]He had been right on the Ladd v. Marshall tests, because this could not be described as material which the Appellant could not have had access to before the application for review, and it was material that he submitted could not really have any influence on the result of the case. The Tribunal had had page 65 all along. The substantive text of page 65 is no different to the substantive text of pages 75 and 77 and it could not be said that this matter had not been properly investigated at the Employment Tribunal on material very similar to that now being advanced.[27]So far as the second submission was concerned, Mr Murphy’s position was very straightforward; this was not in any way an exceptional case and there were no special circumstances that might invoke rule34(3)(e). Indeed, when one examined what should be considered in relation to the interests of justice when looked at from the point of view of the overriding objective, they all pointed towards the refusal of a review: considerable public expense would be incurred in the case continuing; it was unjust to the Respondents because they had on two occasions had to contend with and defeat the allegations; and if there was a separate consideration under rule 34(3)(e) then for the same reasons as advanced in relation to the Ladd v. Marshall test, it was not in the interests of justice to have a review because this material could make no significant impact on the decision that had already been made.[28]In the application for review it is set out quite clearly in paragraph 3 that there is identical timing in what is said to be the forwarded email of 22 October 2007 and the email of 18 September 2007 now disclosed as a result of the police investigation and the evidence of Alison Price. What is not, perhaps, as apparent in the letter as it was apparent to us from the Appellant’s submissions is the contention that the times cannot possibly be there as a result of a forwarding process. Whether or not this is a matter that might need to be scrutinised in terms of some independent expertise or it is simply a matter that can be dealt with by scrutiny of the evidence of Appellant and the evidence of the Respondents, it seems to us that that is a most important contention. If indeed there is no possible explanation for the timings in the forwarded email being the same as the timings in the email of 18 September 2007, other than that there has been a manipulation of that email, as opposed to just simply an archiving or a forwarding of the email, then it seems to us that may put a very different complexion on the issue of whether or not there really had been a management meeting, notwithstanding the notes and notwithstanding the decision the Tribunal made that the notes appeared to be genuine and for that reason the Respondent’s evidence was accepted.[29]It does not seem to us that the Appellant can succeed on the new evidence point. The email sent by Alison Price in June 2009 clearly established a basis for thinking that she had material that could show the date upon which the email had been sent. Whilst it might be true to say she does not go into the timings, it seems to us that whether one looks at the rule, which requires that the existence of the evidence could not have been reasonably known of or foreseen at the time, or whether one looks to the Court of Appeal’s decision in Ladd v. Marshall , and to the most commonly cited part of it, the beginning of the judgment of Denning LJ where he says, “First it must be shown that the evidence could not have been obtained for reasonable diligence for use at the trial”, (if, indeed, there is any distinction between the two) the Appellant cannot pass that test, whether expressed in the one way or in the other. He knew that the material was there and we do not regard it as an adequate explanation that he was put off by the last two lines of Ms Price’s email. The material was available, he could have obtained it by taking simple steps and he failed to do so.[30]Does that mean that the Employment Tribunal was right to see this only as an issue of new evidence? We have reached the conclusion that it does not. We think that the Employment Judge should have considered whether or not the interests of justice required a review. What was being said, although the learned Employment Judge did not have the same opportunity of considering the matter that we have had, was that the only explanation for the timings is that the document had been manipulated. The Appellant had said that:
“It provides without any doubt proof that the date was changed intentionally with remaining the same time of sending. As the document […] is fabricated the document Management Meeting Minutes dated 23/10/2007 […] is also fabricated. It refers to the date 22/10/2007 […] as the date when Respondent was emailed about loss of Wyeth contract. In fact they were informed about this on 18/09/2007 and not 22/10/2007. This means that written notes from Management Meeting Minutes were made when the fabricated email […] was prepared or after it was prepared and not on 23 rd October 2007 as it is confirmed by Lisa Astbury.”
[31]This is of course ground that has been travelled before and that no doubt explains why the learned Employment Judge might have read that without appreciating that this was a new point that was being made. We think that the learned Employment Judge ought to have given consideration as to whether or not the application for review should be considered not only under paragraph (d) of rule 34(3) but also under paragraph (e).[32]Mr Murphy has catered for that potential outcome in his submissions by his argument that none of it could make any difference. The matter has been ventilated previously and the explanation is very likely to be that this is some artefact of the forwarding or archiving process that results in the times being the same. Accordingly, the interests of justice do not require a review, particularly when one has regard to the terms of the overriding objective. Mr Murphy in his skeleton argument referred us to a number of authorities including the Council of the City of Newcastle upon Tyne v. Mr J Marsden [2010] UKEAT/0309/09. In that judgment Underhill J (President) (sitting alone) examined some of the authorities relating to rule 34(3)(e). He paid particular attention to the overriding objective, which he quoted in full at paragraph 13 of his judgment. Whilst he considered that some of the earlier decisions such as Flint v. Eastern Electricity Board [1975] ICR 395 made some time ago before the overriding objective may now have to be treated rather more cautiously, the considerations given to such things as a second bite of the cherry and finality in litigation by the Employment Appeal Tribunal and the then President, Phillips J, were still matters that would have to be considered. He said this at paragraph 16:
“ Williams and Sodexho clearly show that the extensive case law in relation to rule 34(3)(e) and its predecessors should not be regarded as requiring Tribunals when considering applications under that head to apply particular, and restrictive, formulae - such as the ‘exceptionality’ and ‘procedural mishap’ tests, which were understood to be prescribed by Moncrieff and Trimble . I would not in any way question that approach or the general message of both decisions. There is in this field as in others a tendency - often denounced but seemingly ineradicable - for broad statutory discretions to become gradually so encrusted with case law that decisions are made by resort to phrases or labels drawn from the authorities rather than a careful assessment of what justice requires in the particular case. Thus a periodic scraping of the keel is desirable.”
[33]We must, we think, consider what is required by the interests of justice in this particular case. We bear in mind the factors that Mr Murphy has drawn to our attention. This is long-standing litigation. We accept that much of the material has been gone through already and that the Tribunal has reached a firm factual conclusion. We accept that we must take into account the use of public resources in litigation and we also think that we should consider the relative impact on the parties.[34]Ultimately, however, this is an allegation that there has been misconduct by the manipulation of documentary evidence. It seems to us, although we are in absolutely no position whatsoever to reach a concluded view about this matter and do not purport to do so, that there is at least an evidential basis for thinking that there is a yet further aspect of this which is of significance and which requires investigation.[35]We could take one of two courses: we could say that the Employment Judge had erred by not considering the interests of justice, paragraph 34(3)(e), and that he should now do so; or we can take a further step and direct that he now hold a review on the basis that the material, whilst we express no concluded view about it, is material that requires further investigation and an explanation. We think that the latter course is the right one to adopt. We think it was clear from the letter of 29 April 2010 that it was being contended that the timings could not be there by coincidence and that there had to be manipulation of the document. To ignore that seems to us to have been an error of law. We have all the material necessary for us to reach a decision as to whether there should be a review. We think that the right course is to substitute our view for that of the Employment Judge, that there should be a review of this aspect of the case, which should include an evidential investigation confined to the issue as to whether or not there can be any explanation for the timing of the email which is said to be a forwarded email and which appears at page 65 of the bundle, other than that it has been manipulated. All further matters of course are matters of fact to be decided by the Employment Tribunal.[36]Accordingly, we will allow this appeal. We will substitute for the Employment Judge’s refusal of a review a direction that the matter should be reviewed in the interests of justice and that what should be investigated is the timing of the email and the matter will be remitted to the Employment Tribunal for that to take place.