Appeal No. EATS/0072/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 26 November 2003

Before
THE HONOURABLE LORD JOHNSTON
MR A J RAMSDEN
MR M G SMITH

MISS TRACEY PLANK	APPELLANT

GNER LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr A McPherson, Solicitor
Of-
Messrs Drummond Miller
Solicitors
65 Bath Street
GLASGOW   G2 2DD

For the Respondents

	

Mr B Napier, Queen’s Counsel
Instructed by-
Messrs Pinsent Curtis Biddle
Solicitors
1 Park Row
LEEDS   LS1 5AB

LORD JOHNSTON:

1.	This is an appeal at the instance of the appellant employee solely against the decision of the Employment Tribunal to grant a review of its original decision, in respect of the hearing of evidence from two additional witnesses, which, it was said, was not known to be available at the time of the initial hearing.  The decision of the Tribunal granting the review is as follows:-

“By agreement of the parties the respondent’s case was presented first at the full hearing in August 2002.  There had been no exchange of witness statements before the hearing.  The Tribunal thus considered that the respondent had no forewarning about the evidence of the applicant’s conversation with an un-named Driver Training Manager based in London: without forewarning it did not seem to the Tribunal that the respondent could reasonably have anticipated such evidence, which was not of the type which would ordinarily be expected in a case of this nature; and the actual individual was not identified, even in the applicant’s evidence.  The same applied to Mr Smith, although to a somewhat lesser extent, as from the respondent’s letter of 12 December 2001 he was within its own knowledge as at least a potential actor in the events.  In the Tribunal’s view, although it understood the points put forward by Mr McPherson for the applicant and the issue was close, these matters fell on the side of the line amounting to both a satisfactory reason to explain the omission and exceptional circumstances.

The Tribunal accepted, from the Chairman’s notes, that the respondent’s solicitor Mr Booth had at one stage of the applicant’s evidence (after her re-examination) sought to challenge what she had said about the 2 conversations.  That was opposed by the applicant’s solicitor Mr McPherson and Mr Booth then accepted that he would deal with the matter in his submissions (and did so in due course).  Mr Booth did not seek an adjournment and it is fair to say that the Tribunal did not offer or suggest one.  While in some circumstances that course of events might preclude the respondent from seeking a review, in this case, while appreciating Mr McPherson’s submissions for the applicant, the Tribunal considered the matters mentioned above were sufficient mitigating factors that it should not prevent a review being allowed.  In relation to whether the evidence would probably have an important effect on the decision, the Tribunal accepted that at this stage it was not possible to rule that out.

Overall the Tribunal therefore decided that, although again emphasising that the decision was a fine one, in all the circumstances it should in fairness exercise its discretion in favour of the respondent.  It considered that, despite considerations of public interest in the finality of litigation, in this case the respondent’s application for review in the interests of justice under Rule 13(1)(e) should not be refused, although it should be limited to the matters already raised in the statements of the 2 new witnesses and any evidence for the applicant in rebuttal.

Under Rule 13(6) the application for review will thus be heard by this Tribunal at a review hearing on a date to be fixed.”

2.	Mr McPherson, appearing for the appellant, succinctly submitted that the Tribunal had misdirected itself in the sense that it should have been influenced by the fact that the proper course to be adopted by the respondent at the hearing was to ask for an adjournment rather than to deal with the matter by submission, unsuccessfully at the first hearing and then apply for a review.  In any event, he submitted that the Tribunal had not been sufficiently impressed with its own findings that the new evidence would necessarily affect the result.  He referred us to Douglas Water Miners Welfare Society Social Club v Grieve EAT/487/1984 and also to Bingham v Hobourn Engineering Ltd [1992] IRLR 298.

3.	The position adopted by Mr Napier Q.C., on behalf of the respondents was simply that the Tribunal had exercised its discretion which should not be interfered with by this Tribunal unless it was manifestly wrong.  He referred us to a decision of our own Young v Coutts EAT/2/5/2001 which defined the very limited scope available to this Tribunal when considering a matter of discretion exercised by the lower Tribunal.

4.	With this last proposition we agree.  We cannot fault the approach of the Tribunal in considering the fact that it took into account, and, whatever may have been our own view as to what should have been the result, it is plain that the Tribunal considered the issue to be very narrow.  That is all the more reason for this Tribunal not interfering with the decision.  

5.	For this simple reason we shall accordingly refuse the appeal.