The employee had failed to mention at the hearing of his claim for a redundancy payment a fact which was arguably highly material to the issue of whether his refusal of alternative employment was reasonable; and his claim had been dismissed. He applied for a review.
Held: The court was asked whether, and in what circumstances, where the rules precluded a review on the ground that new evidence was available, a review based on the availability of fresh evidence might be open. The later rule had to be considered to be ‘keeping an eye’ on the terms of the prior rule 13(1)(d). The interests of justice ground for review was restrictively construed, and in deciding what the interests of justice require, the Tribunal should look not only at the interests of the employee, but also at the interests of the employer and of the general public. Philips J said: ‘But I do think it necessary . . to find some other circumstances, some mitigating factor, to make it such that the interests of justice require such a review. What are they? First of all, there are the interests of the employee . . One also has to consider the interests of employers, because it is in their interests that once a hearing which has been fairly conducted is complete, that should be the end of the matter. Although this is a case where one’s sympathy is with the employee, because it is his claim for a redundancy payment and the employers have more money than he has, it has to be remembered that the same principles have to applied, either way because one day a case may arise the other way round. So plainly, their interests have to be considered.
But over and above all that, the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be regarded as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry.’
Phillips J upheld the tribunal’s refusal, saying: ‘The difficulty comes in the relationship between paragraphs (d) and (e) of rule 12 (1). The conclusion I reach is that paragraph (d) cannot be regarded as exhaustive of cases where the ground of the application is the desire to call fresh evidence. It does not, for example, deal with circumstances where, although the evidence could be foreseen, or indeed reasonably or actually known, it was for some reason or another not available. I think that paragraph (e) is intended to be a residual category of case, designed to confer a wide discretion on industrial tribunals. But I do not think that it can embrace a case where the application is on the ground of the desire to call fresh evidence, where it was obvious that that evidence was available and there is no additional factor to be taken into account. In other words, if I may summarise it, paragraphs (d) and (e) are not mutually exclusive, but paragraph (e) at all events must be applied in practice with some regard to the kind of case which is intended to come within paragraph (d). And ordinarily speaking, a case which would be put forward under paragraph (d), and which failed under paragraph (d), would fail under paragraph (e) also. Paragraph (e), I think, exists for the case which, although it may be put forward under paragraph (d), has in it some special additional circumstance which leads to the conclusion that justice does require a review.’
Having pointed out that a claim under head (d) was hopeless because the Claimant knew the fact in question and had simply failed to appreciate its materiality, he said: ‘If the case were to succeed, in my judgment, it would have to be under rule 12 (1) (e), that ‘the interests of justice require such a review’. Well, now, what are the interests of justice in a case like this? One view is expressed by the majority of the tribunal; another view is expressed by the dissenting member. It is necessary, it seems to me, to weigh a number of matters, bearing in mind first of all that paragraph (e), in a case of this kind. has to be applied with one eye on paragraph (d). I put it that way. I have said, I do not regard them as mutually exclusive. But I do think that it is necessary, in a case which otherwise falls within paragraph (d) – when I say ‘falls within’ paragraph (d), I mean a case which would be put forward under paragraph (d) – to find some other circumstance, some mitigating factor, to make it such that the interests of justice require such a review. What are they? First of all, they are the interests of the employee. Plainly from his point of view it is highly desirable that the evidence should be given, because it follows, from what I have already said, that there is at least some, perhaps good, chance that if it is given his case will succeed. One also has to consider the interests of the employers, because it is in their interests that once a hearing which has been fairly conducted is complete, that should be the end of the matter. Although this is a case where one’s sympathy is with the employee, because it is his claim for a redundancy payment and the employers have more money than he has, it has to be remembered that the same principles have to be applied either way because one day a case may arise the other way round. So, plainly, their interests have to be considered.
But over and above all that, the interests of the general public have to be considered too. 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 is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry. It certainly seems to me, hard though it may seem in the instant case, that it would not be right that he should be allowed to have a second bite at the cherry in cases which are perfectly simple, perfectly straightforward, where the issues are perfectly clear and where the information that he now seeks leave at a further hearing to put before the tribunal has been in his possession and in his mind the whole time. It really seems to me to be a classic case where it is undesirable that there should be a review.’
Phillips J
[1975] ICR 395
Industrial Tribunals (Industrial Relations Etc) Regulations 1972 Sch, r12
England and Wales
Cited by:
Applied – General Council of British Shipping v Deria and Others 1985
Where an Industrial Tribunal’s decision could not be reviewed because under the rules, the new evidence had been available, a review based on the new evidence should only be granted where there existed some mitigation causing the failure to bring . .
Cited – Sodexho Ltd v Gibbons EAT 14-Jul-2005
EAT Deposit ordered. Order lost in post due to the Claimant putting wrong post-code on ET1. Review. Distinguishing Judgments from Orders. Strike-out. Extending time. . .
Cited – Reith and others v British Airways Plc EAT 29-Oct-1991
. .
Cited – Blockleys Plc v D Miller EAT 30-Jul-1992
Granting review after appeal to EAT had failed would be abuse of process. . .
Cited – Race (T/A Metframe Service Co) v Romaine EAT 5-Oct-1995
. .
Cited – O’Neill v Governors of St Thomas More RC School EAT 12-Oct-1995
The claimant had lodged an appeal against a rejection of her claim of sex discrimination, and against the amount of damages awarded on the success of her claim of unfair dismissal. After rejection of her request for a review, her counsel had lodged . .
Cited – Akzo Coatings Plc v Thompson and others EAT 14-Feb-1996
. .
Cited – Rees v G B Gels Ltd EAT 25-Jul-1997
. .
Cited – Executive Cleaning Services Plc v Ross EAT 11-Dec-1998
. .
Cited – Wainwright v G R Wright and Sons Ltd EAT 21-Jul-1999
. .
Cited – Allonby v Accrington and Rossendale College EAT 29-Mar-2000
EAT Sex Discrimination – Indirect – European Material – Article 19.
EAT European Material – Article 19
EAT Equal Pay Act – (no . .
Cited – HM Prison Service v Gundill EAT 4-May-2001
. .
Cited – R L Firth v Brc Barnsley Ltd EAT 20-Apr-2004
EAT Practice and Procedure – Review . .
Cited – HM Prison Service v Gundill EAT 22-Jan-2002
EAT Unfair Dismissal – Compensation. . .
Cited – Stanley Cole (Wainfleet) Ltd v Sheridan EAT 13-Nov-2001
. .
Cited – Murray v HM Land Registry EAT 25-Jun-2001
. .
Cited – R L Firth v BRC Barnsley Ltd EAT 2-May-2003
EAT Unfair Dismissal – Procedural fairness
EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. . .
Cited – Royal Mail Group Plc v A Sharma EAT 29-Sep-2004
EAT Practice and Procedure – New evidence on appeal . .
Cited – Sterritt and others v Stewarts Supermarkets Ltd NIIT 10-May-2007
NIIT The decision of the tribunal is that the application made by the claimants to review the decision of the tribunal registered and issued to each of the parties on 10 March 2006, dismissing the first notice . .
Cited – Henry v London Borough of Southwark and Another EAT 26-Feb-2008
EAT Statutory Discipline and Grievance Procedures – Whether infringed
Practice and Procedure – Application/claim
The ET struck out the employee’s claims against Respondent (1), her employers, and . .
Cited – F and C Asset Management Plc and others v Switalski EAT 9-Dec-2008
EAT PRACTICE AND PROCEDURE: Review
UNFAIR DISMISSAL: Constructive dismissal
SEX DISCRIMINATION: Direct
Two appeals in respect of two matters heard together by the Employment Tribunal:
(i) . .
Cited – Lindsay v Ironsides Ray and Vials EAT 27-Jan-1994
The industrial tribunal had refused the applicant an extension of time.
Held: The Tribunal mistook the law in holding that it could grant a review of its decision because the employee’s case had not been properly argued at the preliminary . .
Cited – Council of The City of Newcastle Upon Tyne v Marsden (Rev 1) EAT 23-Jan-2010
EAT PRACTICE AND PROCEDURE – Review
Claim under Disability Discrimination Act 1995 dismissed at PHR because Claimant not available to give evidence as to long-term effect of injury – Judge willing to offer . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 18 December 2021; Ref: scu.185969