Appeal No. EAT/1300/97
EAT/1080/98
EAT/1081/98
(Supplement 2)

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 and
    11 November 1999 and
    9 February 2000
Judgment delivered on 29 March 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR L D COWAN
MR S M SPRINGER MBE

MS D ALLONBY	APPELLANT

(1)  ACCRINGTON & ROSSENDALE COLLEGE
(2)  EDUCATION LECTURING SERVICES 
(3)  DEPARTMENT FOR EDUCATION AND EMPLOYMENT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS T GILL
(of Counsel)
Messrs Michael Scott & Co
Solicitors
27 Britannia Street
London WC1X 9JP	
For the First and Second Respondents

For the Third Respondent	MR C JEANS QC
(of Counsel)
Instructed By:
Ms C Gathercole
KLegal
Ludgate House
107-111 Fleet Street
London EC4A 2A

MS M HALL
(of Counsel)
Instructed By:
Mr A Turek
The Treasury Solicitor
Queen Anne’s Chambers
28 The Broadway
London SW2H 9JS

1.	MR JUSTICE LINDSAY (PRESIDENT):	This is a second supplementary judgment to the Principal Judgment handed out a moment ago and in the same matter and between the same parties.   Both the Principal Judgment and the first supplementary judgment are intended to be read before and into this judgment.
2.	In the first supplementary judgment we rejected Mrs Allonby’s appeal from conclusion 1 of the decision of Mr P.A. Verdin sitting alone which was sent to the parties on the 20th August 1997.   That conclusion was :-
“1.	The Applicant is not entitled to compare herself to a named comparator employed by the first respondent in her claim against the second respondent”.
On the 19th March 1998 Mrs Allonby applied by letter for a review of that decision.   The letter referred to the Tribunal’s conclusion in the course of its decision sent to the parties on the 20th August 1997 that:-
“The [College] had no control over the terms and conditions of the Applicant.    The [College] negotiated for the hire of workers through [ELS].   The Tribunal find as a fact that it [the College] had no influence over the terms of the contract between [ELS] and the Applicant.   The only tenuous link was the pay which the Applicant received but the Tribunal find it is a  mere accident  that the negotiations for the fee paid to [ELS] that the [College} can be said to “control” the pay received by the Applicant.   It was not “control” but merely an ability to deduce (if it so wished) how much a particular lecturer was being paid”.
In their letter Mrs Allonby’s Solicitors contended that it had by then, the 19th March 1998, after the main hearing had by then already run for a couple of days, become clear that the issue of control by the College over ELS, crucial to one of the issues we have dealt with in our first supplementary judgment, could be seen to have become considerably more complex than it had seemed to be at the Preliminary Hearing which had led to the decision sent out on the 20th August 1997.   The letter asked that the decision of the 20th August 1997 should be reviewed under Employment Tribunal Rule 11 (1) (d) or (e).   The letter also drew attention to the fact that although the period for a review was only within 14 days from the sending out of the decision of the 20th August 1997, that period could be extended under Employment Tribunal Rule 15. 
3.	There was an oral hearing of the application for a review on the 15th April 1998 and on the 7th July 1998 the Chairman, Mr P.A. Verdin, who had, of course, heard it alone, sent to the parties his decision on the application for a review.   He refused a review and gave his reasons for the refusal.   
4.	In her argument on Mrs Allonby’s part Miss Gill first draws attention to Rule 11  (1) (d) of the Employment Tribunal Rules which provides as follows:-
“(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)	........
(b)	........
(c)	........
(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 interest of justice requires such a review”.
The new evidence to which Miss Gill draws attention consists in part of documents and in part of oral evidence.   The documents consist of a report by the College’s Director of Personnel at which it was reported that “The College determines rates of pay”.   Another document or documents falling within the documentary new evidence were some ELS papers which showed that the amount the College paid to ELS determined what ELS paid its lecturers.   As for the other category, the oral evidence, that consisted of what the College’s Vice Principal, Mrs Bailey, had said in oral evidence in the course of the first two days of the hearing of the main case on the 4th and 5th March.   Through Miss Gill Mrs Allonby claims that the evidence of Mrs Bailey confirmed that the College did not take a passive rôle and that the budgets set by the College in respect of ELS were set in no different than the way in which it set a budget for salaries of in-house lecturers.   Mrs Bailey had said that pay rates had arisen out of a process.
5.	The Chairman, in refusing a review, referred himself to Flint -v- The Eastern Electricity Board [1975] ICR 395 where, at p.404 Phillips J. said:-
“It seems to me that it is very much in the interests of the general public that proceedings of this kind should be as final as possible;  that [it] should only be in unusual cases that the employee, the Applicant before the Tribunal is able to have a second bite of the cherry”.
Flint, though, as Phillips J. then pointed out, had been a “perfectly simple, perfectly straightforward” case.    No one says that of the case before us.   Moreover, as Miss Gill points out, the desirability of finality is rather different where, as here, the litigation is in any event continuing. 
6.	The Chairman had been unconvinced that the so-called new evidence could not have been produced by Mrs Allonby at the Preliminary Hearing if only she or her advisers had turned their minds to it.   There is force in the point as it seems no application had been made for further and better discovery or inspection under Employment Tribunal Rule 4 (1) (b) that should or would have uncovered it.   But most significantly in Mr Jeans’ favour is the fact that what we are here dealing with is the exercise by the Chairman of a discretion.   It is thus incumbent upon Miss Gill to show that either the Chairman espoused some wrong principle of law or came to a conclusion to which no Tribunal properly instructing itself on the law could have come.   We feel quite unable to describe the Chairman’s decision as being in either of those categories.   We therefore dismiss the appeal against the refusal to review.