Malkan v West Midlands Regional Health Authority

The review jurisdiction of an employment tribunal is broad enough to address fresh evidence which could not reasonably have been known or foreseen at the original hearing, and cases where the interests of justice require review. Appeals from employment tribunals are limited to questions of law. Fresh-evidence issues falling within the review jurisdiction should normally be considered first by the tribunal that made the original decision. Where an immediate refusal of appellate applications could irretrievably prejudice access to review, while an adjournment causes no serious additional prejudice, the Court may adjourn the applications with liberty to restore and impose an expedited timetable.

The applicant’s race-discrimination claims arising from his unsuccessful application for a senior registrar post were dismissed by an Employment Tribunal at Shrewsbury on 30 January 1996. The Employment Appeal Tribunal dismissed his appeal at a preliminary hearing on 24 May 1996. Later proceedings before an Employment Tribunal at Birmingham produced fresh material, and the applicant sought permission to appeal out of time against the earlier decisions and permission to adduce that evidence.

The central issue was whether the applications should be determined by the Court of Appeal or adjourned to enable an application for review to be made to the tribunal which had reached the original decision.

1. Applications adjourned. The applications for permission to appeal, extension of time and admission of fresh evidence were adjourned generally, with liberty to restore.
2. Under Employment Tribunal Regulations 1993, regulation 11 conferred a review power broad enough to cover the applicant’s proposed reliance on fresh evidence and the interests-of-justice ground.
3. Appeals from an employment tribunal are confined to questions of law. Fresh evidence falling within regulation 11(1)(d) would normally be dealt with more appropriately by an application for review to the chairman of the tribunal responsible for the original decision, rather than by an appeal.
4. The Court weighed the long delay and the respondent’s concerns against the risk that refusing the applications would irretrievably prejudice the applicant’s ability to seek review. An adjournment on terms of expedition created no serious additional prejudice to the respondent.
5. The applicant was required to apply to the Employment Tribunal for review of the Shrewsbury decision under the current review provisions within 28 days. Any inability to comply required an application for an extension supported by reasons.

• Court of Appeal (Civil Division): The applications concerning the Shrewsbury decision were adjourned generally with liberty to restore.
• Employment Appeal Tribunal: Appeal against the Shrewsbury decision dismissed at a preliminary hearing on 24 May 1996.
• Employment Tribunal, Shrewsbury: Claims, including race-discrimination claims, dismissed after the hearing on 30 January 1996.