United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	written representations
For the Respondent	written representations


 


SUMMARY

PRACTICE & PROCEDURE

Review

This is a case in which the Claimant has emigrated to Australia. The claim was dismissed. An issue arose as to whether it was fair to the Claimant that the Respondent brought documents which had not been disclosed. By the time of the review which is the subject matter of appeal the Respondent's witness was no longer available. The appeal was dismissed on the basis that the Employment Tribunal was acting within its discretion in refusing to revoke the original decision.


 


HIS HONOUR JUDGE PUGSLEY

1. In the case of Jones and Money Expert Ltd this came before me on 4 August. I had other cases in the list. I had been forewarned that the Appellant, Mr Jones, would not be here. Money Expert Ltd did not appear. We made inquiries and we did not get through to anyone who knew anything about it and therefore I decided that I would give judgment today in order that I could finish the other case without going part-heard and without judgment being reserved.
2. I do not wish to be frivolous in saying that anyone who was one hoped well informed about life generally would I think be quietly appalled by what has happened in this case. The expense to the public and the total failure of either party to attend yesterday, although allowed, reduces it to almost a sort of academic moot point carried on at great public expense.
3. On 7 March 2008 the case came before Employment Judge Reed; the Claimant, who by that time had emigrated to Australia, was not there. The Respondents were represented by a solicitor, Mrs McColl, and the Claimant was saying he was entitled to certain sums. I shall read the reasons:

"1. For the Company it was accepted that an agreement had been entered into between the parties which provided for the possibility of such a payment but it was asserted that the conditions for payment had not been met and accordingly no sum was due.

2. Since the events giving rise to his claim, the claimant has emigrated and accordingly was not present at the hearing. However, he had sent a detailed statement which sets out his case.

3. I have heard evidence on behalf of the respondents from Mr Davies, Head of IT and Mr McIntosh, Financial Director."

4. The Tribunal then went on to say that there was an agreement (this is at paragraph 4 of its decision) that Mr Jones would, if he stayed with the company at the end of November, be given a lump sum equal to two months salary in his final pay packet. However, that was conditional on meeting delivery of all projects within timescales and to requirements, maintaining a satisfactory absence and lateness level, continued levels of effort right up until his final day and maintaining a professional and co-operative manner until his final day. The company said that he had failed to perform on some of these conditions, that he failed to fulfil one or more of those conditions and no payment was due. Mr Davies gave evidence of what the Tribunal Judge described as a litany of incidents in respect of the claim. He asserted Mr Jones was badly at fault and had caused the company severe financial loss and difficulties in their relationship with customers. The Claimant's statement dealt with those allegations and rejected them.
5. The Employment Judge said there was no need for him to descend into the details of the dispute as they were well known to the parties. He went on to say the difficulty in this case is the burden on Mr Jones rests with him to prove that unauthorised deductions were not made. Witnesses from the company were present to give their evidence under oath and could be quizzed, the Claimant was not. There was nothing on the face of it inherently incredible in the version given by the Respondents and the Employment Judge found that in the circumstances Mr Jones had failed to discharge the burden of proof upon him. He accepted the evidence on behalf of the company that Mr Jones' performance had been severely lacking on a number of instances. In these respects, it could indeed tend to be said that Mr Jones had not delivered on all projects or requirements or continued his level of effort right up until his departure and he said the failure of the company to pay that bonus did not amount to an unauthorised deduction from Mr Jones' wages and accordingly his claim failed.
6. An application was made to review that and the Tribunal turned that down. That is set out in an order of 8 April and the Tribunal said that the Claimant's argument that the Tribunal had allowed the Respondent to produce a bundle of documents and the statement and the Claimant had not had an opportunity to deal with these or point out their untrue nature was a consequence he took by not exercising his right to attend the proceedings. Thereafter, the Claimant appealed that and by a decision of HHJ McMullen QC given on 22 August 2008 the Employment Tribunal judge was directed to hear a review.
7. I take up the position in this way. In his judgment Judge McMullen said that the payment of the bonus claimed amounted to £5,666 gross, that the Claimant had left the Respondent's employment and took up his planned emigration to Australia; and that:

"At the hearing of the Claimant's case the Respondent turned up with witnesses and a bundle of documents. The Claimant has submitted his witness statement. All of these were considered by the Employment Judge who held the Claimant had failed to prove his case, the burden being upon him that there had been unlawful deductions from his salary."

He noted that the Claimant's appeal had been considered by Wilkie J, who made an order for a full hearing on refusal of review only and by implication the other grounds fell. The learned judge then made the decision that there should be a review because the Claimant had asked for disclosure by the Respondent's supporting evidence case as to why he had failed by his performance to meet the qualifying conditions for the payment. Judge McMullen QC said that where there was a specific order in terms about disclosure and the absent party was then in a position of not having had the opportunity of knowing about the matters that were to be relied on, then there was a material irregularity which cries out to be reviewed.

8. The matter then went back to the District Judge and what Employment Judge Reed said was this: that the judgment of the Tribunal is that upon review the judgment herein of 7 March is confirmed. The essence of the issue between the parties was the payment as to the bonus. The Tribunal judge says this:

"6. The claimant was dissatisfied with that declaration and took the matter to the Employment Appeal Tribunal. It was pointed out there that on 28 February 2008 the Tribunal wrote to the respondents to inform them that they had had ample opportunity to disclose any relevant documents and should assume that at the hearing the Tribunal would not be prepared to allow them to rely upon any that had not yet been disclosed.

7. Leaving aside the question of whether this was an 'order' as opposed to simply an indication of the attitude the Tribunal would be likely to adopt, the Employment Appeal Tribunal felt that the production of 'documents' after that date amounted to a material irregularity and that the matter ought to be addressed by review.

8. This [said the employment judge] presented me with something of a difficulty. There was never any direction that the parties should produce witness statements, much less that any statements should be exchanged. As I made it clear in my original judgment, the basis upon which I reached my decision was that witnesses for the Company were present to give their evidence under oath and be quizzed and that the claimant was not. In other words, the determination turned on live witness evidence, not on any particular documents.

9. The claimant could, of course, have sought a direction that the parties produce witness statements and furthermore that those statements be exchanged. Alternatively, the Tribunal itself might have given such a direction. Neither situation applied here.

10. The respondents could have attended the hearing in March 2008 without producing any witness statements at all; they could simply have called the witnesses (and in particular Mr Davies) to give direct oral testimony."

9. The District Judge went on to say this:

"11. I am conscious of the sentiments behind the judgment of the Employment Appeal Tribunal - that the Employment Tribunal ought to take the opportunity of determining these matters afresh in the light of the representations now made by Mr Jones (i.e. now made with full knowledge of the contents of those witness statements). In spite of the reservations to which I have referred concerning the actual review itself, in the absence of any further considerations I would simply have revoked the judgment and re-determined the matter. However, there were further considerations.

12. The respondents did not have Mr Davies to give evidence on this occasion. I was told that he had left their employment and could not be traced. Since, if the original judgment was revoked, the evidence he gave at the original hearing would be of no effect, I considered that revocation in those circumstances potentially would substantially prejudice the respondents. I could, of course, deal with his evidence in the same way as that of Mr Jones; he had produced a witness statement for the original hearing and I could take into account its contents, albeit that he was now not present to be cross-examined under oath. However, the respondents would clearly be in a worse position that they were in March 2008.

13. As a separate issue I was bound to reflect that even if the original judgment were revoked, Mr Jones would be in difficulties in discharging the burden upon him, for the same reason that he was in March 2008: the contents of his statement were perfectly credible but then again so were those of Mr Davies. The further statements that had now been produced by the parties did not really assist in determining the essential issue between them. Insofar as it was appropriate for me to take into account the likelihood of success in determining whether it was appropriate to revoke that original judgment, that did not assist Mr Jones.

14. In the circumstances I have described, I considered it would not be just to revoke the original judgment, which is therefore confirmed."

10. It is no surprise that Mr Jones from Australia has put in a Notice of Appeal and leave was given by HHJ Reed for this matter to proceed to a full hearing on the basis at least arguable that that decision was perverse. I have the skeleton argument on behalf of the Respondents seeking to justify that position and I have a skeleton argument from the Appellant. It is right to say that during the course of these proceedings the Registrar of this Tribunal made a further order that as the Appellant, Mr Jones, had failed to comply; I should deal with this issue. In response to the solicitors acting on behalf of the Respondents on 29 July the Registrar made the following directions:

"I refer to the above matter and your application (dated 28 July 2009) to strike out the Appellant's appeal.

Your application was referred to the Registrar who has directed as follows:

'The Appellant has ignored the Court's guidance on almost every issue. He has not consulted the Respondent, he has not prepared a proper index and he has attempted to introduce fresh evidence by the 'back door' in his bundle.

I direct that the EAT prepare an index for the bundle. All reference to fresh evidence must be removed. I do not consider that the Court date should be vacated. Nor am I prepared to accede to a request to strike out the appeal at this stage notwithstanding the behaviour of the Appellant. However this application has been caused by the Appellant's conduct. I direct that within 21 days the Appellant should show cause why he should not pay the costs of the application.'

I have since received what I assume to be a matter which is Mr Jones' reasons for not paying the cost pointing out he was not deliberately trying to attempt to mislead or misdirect and putting his reasons why he should not pay the costs.

11. This was a full hearing, no one appeared and I think we rang the solicitors for the Respondents and they were not attending. There comes a point where something is not justiciable on paper. I have come to the view that I dismiss the appeal on the basis it was within the discretion of the Employment Judge to say he was not prepared in the interests of justice to review this matter if he would not have the benefit of live evidence from the Respondent and merely had a witness statement for the Appellant and it was unjust in the circumstances to revoke the decision. The issue for me is not whether I would have made the decision but whether it can be said to be outside the ambit of response and discretion of an Employment Judge. In my view the decision was a matter for the discretion of the Employment Tribunal. In view of the representations made by the Appellant, I do not direct that he pays the order of costs. The Respondent's solicitors have made certain representations on the issue of this matter but they did not attend today and they have not had the benefit of the documentation produced shortly before the hearing.
12. Quite simply I do not see why this issue, which neither party have taken any great effort to attend to, should be conducted as a moot point and I think it was within the discretion of the Employment Judge to refuse the review on the facts as he found them to be, notwithstanding the direction that there should be a review. The short answer is that he did review the matter and in the circumstances gave a reasoned judgment as to why it would be unjust to revoke the original decision. I do not consider that this decision was outside his discretion. The appeal is dismissed and no order is made against the Appellant for costs.