United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms Steyn (ELAAS)


 


JUDGE PETER CLARK:

1. The Appellant Mr Bingham commenced these proceedings by originating application on the 2 February 1998, alleging unfair & wrongful dismissal. He then named as Respondent either Jeromes Personnel Ltd; JPL Engineering; JPL Engineering Ltd, or Mr Michael Sullivan, giving as the address for service C/o Berzac Corporation, Meadow View House Tannery Lane, Bramley, Guildford. He described himself as Chief Executive.
2. By a Notice of Appearance dated the 25 February 1998 submitted by Mr Sullivan, it was said that the employer was Jeromes Personnel Ltd (JPL).
3. The matter came on for hearing before an Employment Tribunal at Brighton on 2 September 1998. We see from the Tribunal's extended reasons for their decision originally promulgated on the 11 November 1998 that the first question to be dealt with was who was the proper respondent. The Tribunal found, on the evidence before it, including that given by Mr Bingham, that the proper respondent was JPL. Their reasons for so finding are set out in paragraph 1 of their extended reasons thus;

"Mr Bingham confirmed on oath that he was paid a wage by Jeromes Personnel Ltd from the start of his employment. He confirmed that the Directors of Jeromes Personnel Ltd were Mr Sullivan and his daughter Samantha. Mr Bingham confirmed in evidence that although he was informed by Mr Sullivan in August 1997, that he was proposing to change the name of Jeromes Personnel Ltd to JPL Engineering Ltd, he did not know whether or not that name change took place and he was never paid by JPL Engineering Ltd. Accordingly, the Tribunal ordered that the correct Repondent to the application was Jeromes Personnel Ltd in place of Mr Michael Sullivan and the title to the proceedings was amended appropriately".

4. The Tribunal then went on to uphold the Appellant's, complaints and to award him compensation for unfair dismissal consisting of a basic award of £945 and a compensatory award of £3,771.30. He was also awarded two weeks notice pay, less a sum advanced to him for unused expenses in the further amount of £79.
5. Having obtained this award of compensation, the Appellant then realised that there was no money in JPL to satisfy his judgement. Accordingly he applied to the Tribunal for a review by letter dated 24 November 1998, relying on evidence which was or could have been made available at the hearing on 2 September 1998. By that evidence he sought to show that he was in fact employed by Installation & Lookout Services Ltd trading as JPL Engineering of the Berzac Corporation.
6. By letter dated 7 January 1999 the Chairman of the original Employment Tribunal, Mr R J T Byrne, dismissed the application for review on the basis that it had no reasonable prospect of success in accordance with Rule 11(5) of the Employment Tribunal Rules of Procedure. At the end of that letter, in which the Chairman gave as his reason for refusing the application that the new evidence could have been raised by the Appellant at the Tribunal Hearing on the 2 September 1998 and that it was not new evidence that had become available since the conclusion of the hearing, it was indicated that the Chairman would deal with the Appellants request for extended reasons for his review decision at the end of January. In fact we are told by Ms Steyn who appears on behalf of the Appellant today under the ELAAS pro bono Scheme that those extended written reasons were never provided and that the Tribunal was not chased for them by the Appellant. Nevertheless we shall exercise our powers under Rule 39(2) of the Employment Appeal Tribunal Rules and consider the Appeal against the review decision on the basis of the Chairman's letter.
7. Meanwhile, by a notice dated 14 December 1998, the Appellant launched the present appeal. He provided further particulars of his grounds of Appeal under cover of a letter dated 1 March 1999 which reflected the new material on which he had sought to rely in his review application. The Appeal, like the review application, depends upon our admitting fresh evidence now relied on by the Appellant which was not before the Employment Tribunal at the original hearing, in order for the Appellant to show that he was in fact employed by a company, Installation & Lookout Services Limited, which was not one of the Companies originally named by him in his originating application. The test for admitting fresh evidence on Appeal to the Employment Appeal Tribunal was formulated by Mr Justice Poppelwell, following the Court of Appeal's approach in Ladd V Marshall [1954] I.W.R.L. 1489 in Wileman v Minilec Engineering Ltd [1988] ICR 318. Fresh evidence will only be admitted on appeal if it could not have been obtained with reasonable diligence for use at the trial; that it is relevant and may have had an important influence on the result of the case and that it is credible.
8. In this appeal against both the substantive decision and the review decision Ms Steyn has drawn our attention to a decision of this Appeal Tribunal, Mr Justice Brown-Wilkinson presiding, in Watson v Seven Kings Motor company Pty Ltd (1983) ICR 135 for the proposition that the Chairman ought to have allowed the review to proceed with a view to the company, Installation & Lookout Services Ltd, being added to, or substituted for, the respondent Jeromes Personnel Ltd. The facts of Watson were in our judgment, very different from the instant case. There the applicant was dismissed from his employment with a firm Seven Kings Motor Co, He presented a complaint of unfair dismissal and mistakenly named as his employer Seven Kings Motor Co Ltd. Subsequently there was a hearing before an Industrial Tribunal at which there was no appearance by the Applicant or by the Respondent. The Industrial Tribunal upheld the complaint of unfair dismissal and made an order for compensation against Seven Kings Motor Co Ltd. Thereafter the Applicant discovered the Limited Company was in liquidation and then realised that he had made a mistake naming the Company rather than the firm as his employer. He applied unsuccessfully for a review. On Appeal, allowing the appeal, the Employment Appeal Tribunal held that it was open to an Industrial Tribunal to substitute a new party to proceedings where it was satisfied that the mistake sought to be corrected was a genuine mistake, was not misleading and would not cause reasonable doubt as to the identity of the person being claimed against. The power to add or substitute a respondent is now contained in Rule 17(1) of the Employment Tribunal Rules of Procedure 1993.
9. In the present case the applicant named four potential respondents before the Employment Tribunal. That issue was investigated on the basis of the evidence given by the Appellant himself and the Tribunal concluded that the correct respondent was Jeromes Personnel Ltd. He did not at that stage suggest that he was employed by Installation & Lookout Services Ltd. Indeed in his subsequent submissions he contends that he was unaware that that company was his employer. We have said that we find the facts very different. It seems to us that in the instant case the issue was fairly before the Employment Tribunal at the substantive hearing. They made a finding on the basis mainly of the Appellants own evidence as to who was his employer and indeed in further material submitted in connection with the review application and this appeal it does appear that the Appellant was paid throughout by JPL, save that in November 1997 he was paid by JPL Engineering one of the other four named respondents in the originating application.
10. We return to the principles for the admission of new evidence both on review and before this Tribunal. It seems to us that having looked at the documents upon which the Appellants now seeks to rely that all but one could with reasonable diligence have been placed before the Employment Tribunal. Had they been placed before the Employment Tribunal it does not seem to us that the result would have been any different. The only reference to Installation & Lookout Services Ltd is on an invoice which the Appellant acquired after the Tribunal hearing. That company does not appear on any of the wage documents.
11. In all the circumstances whilst having sympathy for the position in which the Appellant now finds himself we think that there must normally be finality in judicial proceedings. We can see no grounds in law for interfering either with the substantive decision or with the review decision of the Employment Tribunal and accordingly this appeal must be dismissed.