United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK

1. The Appellant, Mr Michael Preston, worked for Preston & Rowland Ltd (the Company) from the 1 September 1955 until the Company went into administration on 31 October 2001. He was latterly Managing Director of the company and owned two thirds of the issued share capital.
2. Following his dismissal he claimed arrears of pay and holiday pay from the fund administered by the Secretary of State for Trade and Industry. Payment was refused and he commenced proceedings in the Liverpool Employment Tribunal.
3. The Respondent admitted that the Company was insolvent, but did not admit that the Applicant was an employee of the Company, a necessary precondition for the payments claimed.
4. The matter came before a Chairman, Mr D Reed, sitting alone on 13 September 2002. The Appellant appeared by his son, Mr Marc Preston; the Respondent relied on written representations. What is described by the Chairman, in Extended Reasons for his Reserved Decision dated 23 September 2002 as informal evidence was taken from the Appellant. It appears that no evidence, oral or by way of a written statement or both was led from the Company's Joint Administrators.
5. The Chairman found, in the absence of a written contract of employment or board minute evidencing the same, that the Appellant was not an employee of the Company within the meaning of Section 230(1) of the Employments Rights Act 1996 prior to the 15 November 1999. However from that date, when an Administration Order was first made he was continuously employed by the Company until termination on the 31 October 2001.
6. The question then was whether he was owed arrears of pay and/or holiday pay at the termination of his employment. As to that, the Chairman found-

(a) that the Applicant had, at his own instigation, taken a reduction in salary for several months prior to the demise of the Company. The Appellant contended that this was a temporary arrangement and that he expected to be paid the balance of his salary when the company was in funds, particularly when it received monies due from a major customer, Jarvis. The Chairman found such an arrangement was too uncertain to be enforceable.

(b) that there was no contractual right for the Appellant to carry forward unused holiday entitlement from earlier years, as the Appellant contended.

7. Accordingly, the claim was dismissed. The Appellant did not then appeal that decision (the original decision). Instead he applied to the Chairman for a review of the original decision. By a review decision with reasons dated 30 October 2002, the Chairman summarily dismissed that application under R13(5) of the Employment Tribunal Rules of Procedure 2001.
8. He regarded the application as having been made under R13(1)(d), that new evidence had became available since the original hearing. On one view the material relied on by the Applicant in support of the review application appears from paragraph 7 of Chairman's review decision reasons, and the bundle of documents prepared by the Appellant for this Preliminary Hearing. to be -

(i) a letter from the Company's auditors dated 30 October 2001;

(ii) a letter to Mr Marc Preston from the joint administrators dated 29 May 2002 and;

(iii) a letter to Marc Preston from the joint administrators dated the 8 October 2002.

9. The principles upon which new evidence will be admitted after a substantive hearing are those set out by the Court of Appeal in Ladd v Marshall [1954] 3 AER 745. The party wishing to introduce new evidence must show 3 things:

(i) that the new evidence could not have been obtained with reasonable diligence for use at the Tribunal.

(ii) that the evidence must be relevant and probably would have had an important influence on the result of the case and;

(iii) must be apparently credible.

10. The Chairman found:

(a) that the new material could have been put before him at the original hearing and;

(b) had it been before him it would not have altered the result. Indeed the final letter from the administrator tended to reinforce his view as to the uncertainty of the arrangement for payment of salary not taken following the original hearing.

Accordingly, the review application failed.

11. Against the review decision (but not the original decision) the Appellant now appeals. In any event an appeal against the original decision will now be out of time. He does not appear, nor is he represented today for the reasons appearing from Mr Marc Preston's letter to the Employment Appeal Tribunal dated the 28 February 2003. We are asked to deal with the case on the basis of the papers and in particular the Appellant's written grounds of appeal.
12. The thrust of the appeal is that the Chairman was biased and failed to consider the review application on the basis that the interests of justice required a review (Rule 13(1)(e)) as well as under Rule 13(1)(d). It is also said that the Chairman, at the original hearing, overlooked the letter from the auditors which was then before him dated 30 October 2001, as appears from his review decision reasons.
13. We deal with the last point first. The Appellant has not troubled to include a copy of his review application in the bundle for use at this hearing. However, at paragraph 10 of his review reasons, the Chairman refers to the letters (both of which have certainly been produced after the hearing). We think this must be a reference to the 2 letters from the joint administrators and not the letter from the auditors.
14. In any event, the Chairman was not persuaded that those letters as a whole would have altered the original outcome in favour of the Appellant
15. As to the interests of justice requiring a review, it is well established that this is not a general 'catch all', where the substantive ground for a review, here the new evidence rule, fails.
16. Finally, Bias. On the face of the grounds of appeal no bias or appearance of bias on the part of the Chairman is made out. Rejecting a party's case after hearing both sides is not to be equated with the appearance of a pre-determination.
17. In these circumstances we see no grounds in law for interfering with the review decision and accordingly this appeal is dismissed.