United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JACK MITCHELL (of Counsel) Instructed by: Messrs Comptons Solicitors 90-92 Parkway Regents Park London NW1 7AN


 


JUDGE A WAKEFIELD

1. This is an ex parte preliminary hearing of an appeal by Location Catering Europe Ltd against a Decision of an Employment Tribunal sitting at London South by which it was decided that the Respondent, Mr Mike Nugent, had been unfairly dismissed by the Appellant and that there had been unlawful deductions made from his wages.
2. The grounds of appeal all revolve around the Employment Tribunal's findings that by a letter dated 1 January 1998, on the Appellant's headed writing paper and sent to the Respondent, apparently bearing the signature of Mr Barry Rey, the Managing Director of the Appellant, the Respondent's remuneration had been increased from £35,000 to £40,000 per annum. It was on the basis of this increased remuneration that the Employment Tribunal calculated the compensation due to the Respondent for unfair dismissal and the amount of the deductions from his wages, together totalling £14,014.68. Before the Employment Tribunal, both parties were represented; the Appellant by Mr Marsh, described as a Consultant, and the Respondent by Counsel.
3. The first ground of appeal is that the Employment Tribunal erred in exercising their discretion in failing to grant an adjournment of the hearing to allow Mr Rey to attend, in order to hear the evidence being given by the Respondent. The Employment Tribunal dealt with the application for an adjournment at paragraphs 6 and 7 of their Decision in this way.

"6. At the start of the hearing, Mr Marsh applied for an adjournment on the basis that the evidence of Mr Rey, the sole shareholder in the Company, was necessary for the Respondents to obtain a fair hearing. In his argument, he made the point that a letter allegedly signed by Mr Rey was said by the Respondents to be a forgery, and Mr Rey's evidence was necessary to establish the truth with regard to this letter. Mr Rey was at the time attending hospital for an eye operation. Mr Marsh further argued that if the Applicant's claim was based upon a forgery, the Tribunal had no jurisdiction because of the illegality of that document.

7. After hearing argument from each side, the Tribunal decided unanimously that the Respondents should have the opportunity to call evidence from Mr Rey. It was necessary, however, that there should be a preliminary hearing on the alleged illegality. If the document was fraudulent as alleged by the Respondents, it did not form part of the contract. If it was genuine, then there was in any event no illegality. The Tribunal decided that the remainder of the evidence would therefore be heard first, and if necessary the case would be adjourned part-heard and Mr Rey could be called upon the subsequent occasion. This is in effect what happened."

4. Counsel for the Appellant today has not been able to demonstrate that an adjournment was sought in order for Mr Rey to hear the evidence of Mr Nugent, as opposed to being able to give evidence himself. The Appellant's Counsel argues in the alternative, that justice required that the Employment Tribunal considered this of their own volition, especially where the question of a forged document was concerned, a document which bore a purported signature of Mr Rey, but which he denied bringing into existence.
5. We do not agree. The Appellants were represented. While the Respondent gave evidence Mr Rey, who was not in any event a party to the Originating Application, could have been kept fully informed as to what had been said by the Respondent so as to be able to respond in his own evidence later. In our view, the Employment Tribunal did not err in the exercise of their discretion as to whether to grant an adjournment.
6. The second ground of appeal is as to the Employment Tribunal's findings of fact on the letter of 1 January 1998 which are set out in paragraph 17 of the Decision. They say this:

"In the face of a direct conflict of evidence on this point, we concluded on the balance of probabilities that Mr Rey was the author of the letter, and that it varied Mr Nugent's contract so as to increase his salary to £40,000 per annum. We took this view for the following reasons.

(a) the signature appeared to be Mr Rey's, as he accepted that it might have been, and no satisfactory explanation was put forward for its presence on the letter if he was not the author;

(b) the letter was signed in red ink, and it was unlikely that a forger would draw attention to his work by forging a signature in red ink;

(c) it was suggested by Mrs Maglione that Mr Rey was 'too pedantic' to sign a letter in red. However, the original of another letter examined by the Tribunal, whose authorship was not in dispute, had been signed by Mr Rey in red;

(d) there was no basis for the allegation that the letter had been forged to assist a mortgage application. The suggestion was inherently implausible given the fact that Mr Nugent later applied for a mortgage, and his salary was stated by Mr Patel to be £35,000;

(e) although both Mr Lindsay and Mr Rey alleged that the letter was a forgery, there was a significant discrepancy in their accounts of its origins. Mr Lindsay gave evidence on 19^th April that he had been told by Mr Rey that he 'surmised' Mr Nugent had forged it for a mortgage application. When Mr Rey gave evidence on June 14^th, he made the allegation for the first time that Mr Nugent had told him that he had forged the letter for a mortgage application."

and it goes on in sub-paragraphs (f) to (k), which I need not read.

7. These conclusions by the Employment Tribunal have been criticised before us paragraph by paragraph. Overall, it is said that no reasonable Tribunal, directing itself properly in law could have reached such a conclusion, which is obviously wrong. We do not agree and we do not consider that these matters are arguable. The Employment Tribunal saw both the Respondent and Mr Rey; they took into account factors on both sides of the argument and made a finding which, on the evidence they had was, in our view, perfectly permissible.
8. Finally, we have before us affidavits from Mr Rey and two other employees of the Appellants, which the Appellant would, on any full hearing of this appeal, seek to put before the Appeal Tribunal. We do not consider it arguable that this fresh evidence should be admitted. The affidavits contain solely matter which was known about and could have been adduced before the Employment Tribunal.
9. While we accept that under the Civil Procedure Rules' overall objective, there may have been some relaxation in the strict application of the tests for the introduction of new evidence, which were set out and followed for many years from the case of Ladd -v- Marshall [1954] 3 AER 745, we are quite unable to say that where evidence was clearly available and obviously relevant, on what was known at the time of the hearing below to a party or its representative, such evidence should, on general principles of doing justice between the parties, be admitted on appeal.
10. If a party does not prepare its case fully and properly at the trial stage, it cannot later repair the omissions. The case of Hamilton -v- Al Fayed heard in the Court of Appeal and cited before us does not alter this position.
11. This appeal, in our view, cannot succeed and it is dismissed.