Appeal No.	 EAT/205/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 1999

Before
HIS HONOUR JUDGE HAROLD WILSON
MS B SWITZER
MR K M YOUNG CBE

MR B BILLAU t/a THE BIG BIKE CO.	APPELLANT

MRS E LOCKHART	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MS HOGG
(of Counsel)
ELAAS	

	JUDGE HAROLD WILSON:	This is the preliminary hearing of an appeal against the refusal of a review by the Employment Tribunal. The review concerned a remedies decision which had followed a contested series of proceedings before the Employment Tribunal. Those proceedings had resulted in the applicant, Mrs Lockhart, succeeding in satisfying the tribunal that she had been constructively and unfairly dismissed and had been unlawfully discriminated against on grounds of sex. 

	The tribunal for the remedies hearing had made an award of damages in respect of compensation for unfair dismissal. In the same proceedings the tribunal had dismissed the applicant’s claim for further consideration of aggravated damages, refused her application for costs and dealt finally with the question of interest on the compensation for sex discrimination. We refer to those matters to illustrate the even-handed approach of the tribunal at all stages of the proceedings.

	The grounds upon which a review was sought were that the applicant’s employment since dismissal had been terminated because the new employer lacked funds and that the evidence which had been given was correct. In fact she had resigned effectively of her own free will. The tribunal directed itself that the existence of new evidence, was to be admitted, must not have been reasonably known or foreseen at the time of the original hearing. The tribunal correctly directed itself concerning the law and the relevant Rules of Procedure and Regulations, setting those out in paragraph 2 of their extended reasons, in rejecting the application for review. The tribunal said in paragraph 4 that it seemed to them that the difficulty faced by the appellant was that:

“4 ... It was quite apparent from the decision on the merits that the issue which the Tribunal was to determine [at the remedy hearing] was that of compensation for loss of earnings. There is a well established procedure, which litigants in person use all the time, whereby an application can be made to a Tribunal that the other side provide briefly the outline of what its case on a particular point at issue is, for example:-
	What work has the applicant had since the dismissal?
	What are her earnings?
	What is her current employment status?”

No such application had been made to the tribunal by the appellant. It is noteworthy to consider the context of the whole proceedings. At the outset, the tribunal had adjourned matters in order to provide each side with the opportunity to reflect upon the wisdom of being legally represented in proceedings which are notoriously difficult. The proposed appellant chose not to be legally represented. Similarly he chose not to make any of the enquires which normally are made. Now he says that he has evidence but had had no reason to suppose that he was going to be in a position to use that evidence.

	We have had regard to the whole atmosphere in which these proceedings were conducted by the proposed appellant as disclosed by all the papers which we have had in considering this application today. It seems to us that it is remarkable that he was not filled with suspicion from the very outset. However that may be, we can find no fault with the way in which the matter is expressed and in which it was dealt with by the tribunal. The second part of paragraph 4 of their reasons states that:

“4 ... When the matter was raised [at the remedy hearing], he did not cross-examine the applicant upon the question on her loss of employment. We cannot see, in conscience, how it can be said that the evidence relating to this lady’s loss of employment, either voluntarily or involuntarily, is evidence the existence of which could not have been reasonably known or foreseen at the time of the hearing. Plainly, the applicant’s employment status was going to be a matter which had to be considered by the Tribunal. Plainly, it was foreseeable there must be evidence available about that. In all those circumstances, notwithstanding the nature of the evidence which Mr Billau now wants to bring before us, the rule is clear. If we cannot say that this is evidence the existence of which could not have been reasonably known of or foreseen at the time of hearing, then we are not entitled to re-open the case and look at matters again because new evidence had been brought forward which might, if we had heard it, have led us to a different conclusion.”

Therefore, the tribunal unanimously dismissed the application for a review.

	We find no reason to criticise or differ from the conclusions reached by the Employment Tribunal and we have concluded that if this matter were to proceed to a full hearing, there is no reasonable prospect of succeeding. Accordingly, the appeal is dismissed.