United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant

David Reade of Counsel Instructed by Julian James Solicitors 2 London Wall Buildings London Wall London EC2M 5UU

For the Respondent

Ivan Krolick of Counsel Instructed by Community Law Clinic 71 Chamberlayne Road Kensal Rise London NW10 3NA

SUMMARY

Unfair Dismissal

Appellant's application to adduce fresh evidence refused but case remitted to the same Employment Tribunal to have further evidence and make further findings of fact: see Burns v Consignia (No2) [2004] IRLR 425.


 


HIS HONOUR JUDGE BIRTLES

1. This case is listed as the hearing of an Appeal from the decision of an Employment Tribunal sitting at London Central on 2, 3 and 6 October 2003. The Chairman was Mr CA Carstairs, and the members were Messrs M. Dacey and Mrs RE Tomlin. The Applicant, the Respondent, here appeared in person, and the Appellant, the Respondent below, was represented by Mr David Reade of Counsel, who appears before us today. This morning, Miss Garvin is represented by Mr Ivan Krolick of Counsel. We are grateful to both of them for their very helpful Skeleton Arguments and Submissions.
2. The unanimous decision of the Tribunal was that (1) by concession the Respondent unfairly dismissed the Applicant; (2) the Applicant contributed 25% to her dismissal; (3) the Applicant was awarded £21,156.98 in respect of her unfair dismissal; (4) the Respondent wrongly dismissed the Applicant, the compensation in respect of that wrongful dismissal being included in the compensation for unfair dismissal; and (5) by consent the Respondent to pay £110 to the Applicant in respect of her contractual expenses claim.
3. The Notice of Appeal was received at the Employment Appeal Tribunal on 15 March 2004 and essentially put forward two grounds of appeal. Taking them in reverse order the First Ground of Appeal was that the Tribunal had miscalculated the calculation for compensation. That matter was dealt with by the Employment Tribunal recalculating the compensation and reducing it to £18.239.49 – that certificated correction was made on 27 February 2004.
4. The Second Ground of Appeal was that the Employment Tribunal had made an error of law in finding that the Respondent's writing of a reference on her employer's writing paper for a business tenant of the Respondent did not amount to a fundamental breach of the implied term of trust and confidence thereby disentitling the Respondent to any compensation at all.
5. It is not necessary to go into all of the facts of this case. The material facts are set out in paragraphs 8-17 of the Employment Tribunal's decision. Suffice it to say that Miss Garvin was employed by the Appellants as the manager of a business centre in Kilburn. Part of her responsibilities included the letting of the various offices in the building, dealing with all of the paperwork and ensuring that the business tenants paid the rent and chasing up arrears of rent. She was assisted by a receptionist at the building.
6. At the hearing before the Employment Tribunal in October 2003, the Appellants conceded unfair dismissal and the hearing then proceeded to deal with the issue of compensation. In respect of contribution Mr Reade made submissions to the Tribunal that Miss Garvin had provided four forged references using writing paper which belonged to the Appellant and in effect had misrepresented her authority in providing these false references. The Tribunal heard evidence from a number of witnesses. Their details are set out in paragraph 6 of its decision. On behalf of the Respondent they heard evidence from Miss Garvin who produced five witness statements and a Ms Ekemezuma who was the receptionist. Having looked at the documentary evidence including the alleged forged references and heard all of the evidence the Tribunal concluded that Miss Garvin had in fact forged one of the four references but not the other three. On that basis they concluded that there was not a breach of the implied term of trust and confidence in writing this one letter and went onto say that it was a breach of the Applicant's obligations to the Respondent. The Tribunal therefore concluded that the Applicant in writing that letter had contributed 25% to her dismissal: decision paragraph 17. Against that decision the Appellant appealed.
7. However, that ground of appeal changed in this way. By a letter to the Registrar dated 14 August 2004, Miss Garvin sought to put in evidence/documentation which included an article in 'The News of the World' newspaper relating to the arrest of Mr Paul Singh Arora. She stated that this was the man known to her as Mr Oberoi, who was a business tenant of the premises which she managed, and who was central to her case in that she had allegedly written a reference for him which her employers considered to be false information.
8. In due course the Appellant also made an application to adduce fresh evidence contained in an affidavit of Mr Julian Edward James, sworn on 1 February 2005. That affidavit was not served until shortly before the hearing of the Appeal before a Panel of the Employment Appeal Tribunal presided over by Mr Justice Silber on 15 February 2005. That hearing was therefore adjourned and re-listed for today. That was because the Respondent was to be given the opportunity of filing a Witness Statement in answer to Mr James' affidavit which she has done. We have read all of those documents.
9. At the beginning of the Appeal we dealt with the question of the applications to submit fresh evidence. On behalf of his client, Mr Krolick has withdrawn his application to admit fresh evidence but Mr Reade for the Appellant has pursued his. We heard submissions from both Counsel and it is our decision that we will not grant Mr Reade's application to admit fresh evidence because the nature of the evidence is not going to assist in the disposal of this Appeal this morning. Applying the well-known test in Ladd v Marshall [1954]1 WLR 1489 we decided that the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal hearing; second that it is relevant evidence. We are not able to decide whether it is apparently credible. The evidence is contained in paragraph 18 of Mr James' affidavit and it relates to matters which arise from the fact that Miss Garvin has been arrested and charged with an offence of making a false declaration on or about 24 April 2003 in order to procure a marriage contrary to the provisions of section 3(1) of the Perjury Act 1911.
10. The matters which Mr James wishes us to take note of today have all come from a third source; that is officers of the Metropolitan Police, and in particular, a Detective Constable Wendy Bassett. There is also a letter from a Detective Chief Inspector Murrell. The matters are four-fold. First, that the Respondent appeared in a wedding photograph with a groom, a Mr Khan, and a separate photograph with Mr Oberoi allegedly taken on the same date; second, that a police search of the Respondent's flat in October 2004 produced a number of blank tenancy agreements which were the property of the Appellant, together with a substantial number of sheets of writing paper for the business centre which Miss Garvin had been the manager for. Third, there were also found some forty separate immigration applications which rely upon false tenancy agreements to which the Appellant is allegedly a party – these are dated between 2001 and 2004 and clearly span some of the employment period of the Respondent; fourth, a false tenancy agreement purporting to concern the Appellant together with a false wage slip from the Appellant which were used to verify identity at the false wedding at the Registry Office in April 2003.
11. As I have indicated Miss Garvin has been charged with one criminal offence relating to a false declaration at a marriage on 24 April 2004. As we understand it, it is alleged that she was the 'bride'. The background to that is that Mr Oberoi appears to have been the principal in an operation to arrange false marriages in order to obtain residence in the United Kingdom for one of the partners to those false marriages. We are unable to judge the credibility of this evidence because having provided some information to the Appellant's solicitors, the police are not prepared to disclose the documentation referred to in Mr James' affidavit until after the conclusion of the criminal trial. Therefore the information is not exhibited to Mr James' affidavit. We say nothing about the trial of Mr Oberoi – no information of any kind has been put before us.
12. It seems to us that if the material contained, in paragraph 18 A-D of Mr James's affidavit, is placed before the Tribunal it would go to the heart of the decision which the Tribunal has made in accepting the evidence of Miss Garvin that she was not responsible for forging three other references. It seems to us that the material, if it is produced to the Tribunal, would show first, that there was a relationship between Mr Oberoi and Miss Garvin which had commenced during her period of employment and which continued thereafter, and that second there was material which could lead the Tribunal to infer that Miss Garvin had lied to it when she gave her evidence in 2003.
13. We do not form any view about the quality of this evidence, we have not seen it and we do not know whether it will be provided to the Employment Tribunal. However, it seems to us in this case, that the central issue was the credibility of Miss Garvin which largely the Employment Tribunal accepted, and found in her favour. It made an order for payment of a substantial amount of compensation. It seems to us that this is a most unusual case and the appropriate course of action for us zato take this morning, without hearing the substantive appeal, is to remit the case under the Principles of Burns v Consignia (No.2) [2004] Industrial Relations Law Report, 425. We therefore invite the Employment Tribunal to hear further evidence, make further findings of fact and give such further reasons as it considers necessary on the issues raised in the case. We therefore will remit the case to the same Employment Tribunal. If that is not possible, then to such a fresh Tribunal as the Regional Chairman directs.
14. We have been told, and it appears not to be in dispute, that Miss Garvin's trial is fixed to take place at Harrow Crown Court in the week commencing 26 September 2005. We have no power to direct an Employment Tribunal as to when it should or should not hear a case but for obvious reasons we think it appropriate to request the London Central Employment Tribunal Office to list this case for a hearing after the conclusion of Miss Garvin's trial. The reason for that is there can be no possibility whatsoever of the prosecution authorities, whether it be the Crown Prosecution Service or the police releasing any information until the conclusion of that trial and any subsequent hearing at the Employment Tribunal would, in our judgment, be of little value to both parties without the production of that evidence.