United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR O SEGAL (of Counsel) Instructed by: Messrs Hodge Jones & Allen Twyman House 31-39 Camden Road London NW1 9LR
For the Respondent	MR D OUDKERK (of Counsel) Instructed by: Mr D L Thomas Rentokil Initial UK Ltd Rentokil House London Road Baldock SG7 6ND


 


JUDGE PETER CLARK

1. This is an appeal by Mr El Mahjoub, the Applicant before the Stratford Employment Tribunal against that Tribunal's Decision, promulgated with Extended Reasons on 7 February 2000, insofar as it dismissed his complaint of unfair dismissal brought against his former employer, the Respondent, Initial Cleaning Services Ltd. A further complaint of unlawful deductions from wages was resolved by agreement and does not concern us in this appeal.
2. The issue in relation to the unfair dismissal complaint was whether the Applicant was dismissed by the Respondent or whether he resigned in circumstances which did not amount to a dismissal within the meaning of section 95 of the Employment Rights Act 1996.
3. By way of background the Applicant, who commenced his employment with the Respondent in May 1998, was at the material time engaged as Site Manager on a cleaning contract which the Respondent held in respect of premises known as Murray House. There were stark factual issues between the parties which the Tribunal had to resolve. In doing so it was necessary for them to make a judgment as to the credibility of the witnesses before them. The principal issues of fact were, first whether on 1 July 1999 Ms Brechin, the Respondent's Regional Director, suspended the Applicant on pay or whether during the conversation between them the Applicant announced that he was resigning with the words "I am finished. I resign". The Applicant asserted that he was suspended and denied saying that he was resigning. Ms Brechin asserted the contrary. Secondly, an issue arose as to whether the Applicant was telephoned by Mr Pearson, the Operations Manager, on the evening of that day by telephone and on that occasion the Applicant affirmed his decision to resign. There was a further issue as to whether Mr Pearson in fact wrote a letter to the Applicant the following day, accepting his resignation.
4. All of these factual issues were resolved in favour of the Respondent's witnesses. The Tribunal concluded that the Applicant had uttered words of resignation to Ms Brechin, she did not suspend him; he confirmed his resignation that evening on the telephone to Mr Pearson. Mr Pearson did write to the Applicant the following day, accepting his resignation. In these circumstances the Tribunal held there was no dismissal and consequently the unfair dismissal claim failed.
5. Before the Tribunal the Applicant appeared in person and the Respondent was represented by its Personnel Director, Mrs Stringfellow. The Applicant entered a Notice of Appeal to the EAT on 20 March 2000. The grounds of appeal related solely to new evidence which the Appellant now sought to adduce. He did not first apply for a review of the Tribunal's Decision under what is now Rule 13 (1)(d) of the 2001 Employment Tribunal Rules, then Rule 11(1)(d) of the 1993 Rules. However Mr Oudkerk takes no point on that in this appeal.
6. The matter came on for preliminary hearing before a division of the EAT presided over by Judge Levy QC on 15 November 2000. At that ex parte hearing the Applicant had the advantage of representation by Mr Oliver Segal of Counsel under the ELAAS pro bono scheme. In addition to what we shall call the new evidence point, Mr Segal raised a further and separate complaint of procedural irregularity. Specifically, as appears from the judgment given by Judge Levy on that occasion, that a telephone record was produced to the Employment Tribunal, we interpose by the Respondent, during closing speeches. The Applicant was not given the opportunity to cross-examine any witness about that document, nor was any guidance given to him about its relevance by the Tribunal over and above the matter for which the Respondent required it. Both the procedural irregularity and the new evidence points were permitted to proceed to this full hearing, with the Respondent present. For that purpose, the Applicant was directed to lodge an amended Notice of Appeal in substitution for the original Grounds of Appeal, identifying the grounds on which the appeal was permitted to proceed and to serve an affidavit, on the face of it limited to the new evidence point but, inferentially, applying the terms of our Practice Direction, covering also the procedural irregularity point.
7. Those directions were complied with. The amended grounds of appeal, settled by Mr Segal, begin with the procedural irregularity point. It is there asserted that the document, that is Mr Pearson's mobile telephone account, was produced by the Respondent's representative, Mrs Stringfellow in closing submissions and was not the subject of sworn evidence. That version of events was deposed to by the Applicant at paragraph 9 of his affidavit in these appeal proceedings sworn on 5 December 2000.
8. In the usual way a copy of that affidavit was sent to the Tribunal Chairman, Mr Purse, for his comments. He responded by letter to the Registrar dated 12 January 2001 in which, by reference to his notes of evidence, he demonstrated that the document was produced in evidence, it appears from the notes during re-examination of Mr Pearson. The Chairman adds that he has no note of the document being mentioned in closing submissions.
9. Subsequently Mr Pearson and Mrs Stringfellow both swore affidavits in these appeal proceedings on respectively 19 and 24 September 2001. Mr Pearson states, at paragraph 5 of his affidavit, that the Chairman asked him to produce the telephone bill, which he said was in his briefcase, whilst he was giving evidence. It was seen by the Tribunal members and the advocates, Mr El Mahjoub and Mrs Stringfellow. Mrs Stringfellow recalls in her affidavit that it was during cross-examination of Mr Pearson that an issue arose as to whether Mr Pearson had telephoned the Applicant during the evening of 1 July 1999; Mr Pearson referred to his having a copy of his telephone bill in one of his files. The Tribunal gave him permission to produce the document, which he did, it then being passed around the Tribunal members and the advocates.
10. Against that background we turn now to the two grounds of appeal before us.

(1) Procedural irregularity

The point raised for the first time at the preliminary hearing proceeded on the premise that Mr Pearson's mobile telephone account was not adduced in evidence, but was produced for the first time during Mrs Stringfellow's closing address to the Tribunal. The Applicant deposed to that fact in his affidavit. That turns out to be incorrect. It was produced whilst Mr Pearson was giving evidence, albeit in re-examination. It arose because the Applicant had challenged his veracity; he put to Mr Pearson that he did not telephone the Applicant on the evening of 1 July. Mr Pearson produced his phone bill to show that he had telephoned the Applicant's number and had a 5¾ minute conversation starting just after 10 pm. Faced with that corroborative evidence it would seem that the Applicant simply did not pursue the point. He did not ask for time to consider the document. It was not referred to by either representative during closing speeches. Unsurprisingly, the Tribunal found as a fact that Mr Pearson did telephone the Applicant that evening.

Undeterred, Mr Segal submits today that even if the document was produced in evidence it was at a very late stage. The Tribunal ought to have invited the Applicant to take time to consider the contents of the document. Had he been given that opportunity he would have appreciated that other parts of the telephone account gave rise to matters on which he would wish to further cross-examine Mr Pearson. Specifically, he would have used it to challenge Mr Pearson's evidence that he was in the office on the morning of 1 July and the omission in his witness statement to refer to a telephone conversation with the Applicant on 2 July. The account showed telephone calls to the office on 1 July and a call to the Applicant on 2 July. He does not seek to challenge the entry for 1 July which shows that Mr Pearson in fact telephoned him just after 10 pm on that day.

This procedural failure by the Tribunal amounts, Mr Segal submits, to a denial of a fair hearing such that we should allow the appeal and remit the whole case to a fresh Employment Tribunal for rehearing. We are quite unable to accept that submission for these reasons. First, we do not accept that litigants in person must be treated more favourably than those who are professionally represented. There was here no application by Applicant to further cross-examine Mr Pearson, or for an adjournment, however short to consider the document. Cf Aberdeen Steak House -v- Ibrahim [1995] ICR 550. Secondly, there is no dispute now as to whether Mr Pearson made the relevant telephone call; thus there is no challenge to the document as to the purpose for which it was introduced into evidence by the Respondent. Thirdly, it cannot be right to direct a re-hearing of a case, finally determined between the parties, on the basis that one party, whether represented or not, failed to ask for time to consider a document so as to apply for permission to ask further questions in cross-examination which, on analysis, would have been of no real value in determining the issues in the case. In fact, as Mr Oudkerk points out, the telephone account entries now sought to be relied upon by the Applicant are not inconsistent with the evidence given by Mr Pearson.

For these reasons we reject this first ground of appeal. There was no procedural unfairness or any failure to do justice between the parties on this aspect of the case.

(2) New evidence

It is common ground between Counsel that the principles upon which the EAT will exercise its discretion in granting or refusing an application to adduce new evidence on appeal are set out in Wileman -v- Minilec Engineering Ltd [1988] IRLR 144, following the well known statement of practice in Ladd -v- Marshall [1954] 1 WLR 1489 (CA).

Fresh evidence will only be admitted on appeal in exceptional circumstances. The test is threefold:

(i) the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal,

(ii) the evidence must be relevant and would have had an important, although not necessarily decisive influence on the outcome of the hearing below, and

(iii) the evidence must be apparently credible, although it need not be incontrovertible.

11. The application of that test remains appropriate under the new Civil Procedure Rules. The discretion must be exercised in accordance with the overriding objective of doing justice between the parties. The reasons for this approach being taken remain the policy considerations of finality in litigation; that parties should put their full case before the Court or Tribunal at trial and should not be allowed a second bite of the cherry without very good reason. Hertfordshire Investments Ltd -v- Bubb [2000] 1 WLR 2318, per Hale LJ 2324 B - C, 2325 E - F.
12. The new evidence, sought to be adduced, now falls into two categories:

(a) the evidence of Manuel Araujo, contained in a witness statement exhibited to the Applicant's affidavit. In that statement Mr Araujo, who was at the relevant time employed by the Respondent as a Night Supervisor at Murray House, states that in June 1999 Ms Brechin offered him the running of Murray House to start when the Applicant took his holiday. Asked what would happen to the Applicant, Ms Brechin allegedly laughed and said "Don't worry about him he will be taken away from Murray House for good". The Respondent has not put in affidavit evidence from Ms Brechin dealing with that evidence; apparently she is travelling abroad and cannot presently be contacted by the Respondent. In his affidavit Mr Pearson denies a suggestion in Mr Araujo's witness statement that he had approached Mr Araujo about a possible promotion. We shall assume that Mr Araujo's evidence would be contested.

The first question is whether the evidence of Mr Araujo could, with reasonable diligence, have been put before the Employment Tribunal. In his affidavit, paragraph 6 the Applicant states that he met with a Mr Leitao, a former employee of the Respondent on about 5 March 2000, that is after the Tribunal hearing and Decision. Mr Leitao told the Applicant of how Mr Araujo had been treated by the Respondent; The Applicant was put in contact with Mr Araujo and subsequently his witness statement was obtained later that month.

It will often be the case that a party learns of further evidence which he might have called before a Tribunal after the event. However, that will not of itself provide good grounds for re-opening the case. The principle of finality in judicial decisions remains important. It is for each party to bring their whole case before the Tribunal at the substantive hearing. Even assuming that this evidence is significant and credible, it could, with reasonable diligence, have been put before the Employment Tribunal. The time for investigating the case evidentially is before, not after the hearing. On this ground we would not admit Mr Araujo's witness statement.

(b) Certain correspondence between the Respondent and a Mr Stevens in November/December 1999 which, it is said, indicates that the Respondent had treated Mr Stevens badly as the Applicant alleged he had been treated badly in this case.

Looking at the correspondence, on 18 November 1999 Mr Stevens complained to Ms Brechin that, having been asked to leave a contract at Credit Suisse First Boston at Canary Wharf by the client, she promised to find him suitable alternative employment but failed to do so. He was later told by Mr Pearson that there was no other job for him. He also complained that he had not received monies owing to him. He then wrote to Mrs Stringfellow on 30 November, repeating his complaints.

13. Mrs Stringfellow replied on 9 December. She asserted first that he had left the Credit Suisse site at the client's request and secondly that he had been offered two alternative jobs, neither of which he was prepared to accept. She offered him a meeting with Ms Brechin to discuss the matter on 15 December.
14. In his affidavit in these proceedings Mr Pearson states that Mr Stevens resigned, he was not dismissed. Mrs Stringfellow states that after her letter to Mr Stevens she heard no more from him.
15. It seems to us that this exchange of correspondence was highly unlikely to have had any, let alone a significant effect, on the outcome of the Tribunal proceedings. The circumstances of Mr Stevens' position was not akin to those in the Applicant's case. Secondly, for the reasons given in relation to the evidence of Mr Araujo, we are not satisfied that the Applicant could not, with reasonable diligence, have arranged for Mr Stevens to attend the Tribunal hearing had he wished to broaden his case to include tangential evidence of this type.
16. In these circumstances we hold that the Applicant has failed to pass the threefold test in relation to the new evidence. Looking at the matter as a whole, there are no good grounds to admit this evidence with the result that a rehearing should take place before a fresh Tribunal. On the contrary, we are quite satisfied that justice between these parties requires us to dismiss that application. It follows also that the appeal must therefore be dismissed.

Sir, may I ask for - if I still need it - and I think I do need in order for the legal aid taxation

Oh certainly, I forget quite what it is called now Mr Segal, but whatever it is, you can have it. I am sure our associate will know what the proper form of order is.