United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W MACKENZIE (Solicitor) Messrs McKeowns Solicitors 8 Parkway Porters Wood St. Albans Herts AL3 6PA
For the Respondent	MR T ADKIN (of Counsel) Instructed by: Mitie Security Ltd 132 Atlantic House Perimeter Road East London Gatwick Aiport West Sussex RH6 0JJ


 


SUMMARY

PRACTICE AND PROCEDURE: New evidence on appeal

Witness before Tribunal changed his evidence concerning a critical date from that which was in his witness statement. Tribunal made critical finding on that basis.

Application on appeal to adduce fresh evidence – Ladd v Marshall principles applied – evidence could not have been obtained with reasonable diligence for use at the Tribunal hearing – evidence would probably have had an important bearing on the hearing – evidence accepted to be credible.

Appeal allowed.


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Mr Matloob Hussain against a judgment of the Bedford Employment Tribunal chaired by Employment Judge Cassel dated 27 February 2008.
2. The Tribunal rejected Mr Hussain's complaint of age discrimination against his employer, Mitie Security Ltd ("the Company".)
3. Mr Hussain's appeal centres upon a particular finding of fact made by the Tribunal concerning an alleged telephone call on 21 January 2007. He argues that he was taken by surprise at the Tribunal by evidence of a telephone call on this date which was changed from a date in a witness statement. He seeks to call fresh evidence which he argues is relevant to whether this telephone call took place.
4. That is the argument which has been pursued before us today, although there were other arguments in the Notice of Appeal; they have all, in our judgment, correctly been put to one side.

Background

5. Mr Hussain was 64 years of age in January 2007. The Company is a specialist in the security industry. Mr Hussain had worked as a security guard since July 2000. His contract of employment provided:

"The Company does not guarantee a minimum number of working hours per week. Your hours of work will vary according to the site(s) to which you are assigned. In situations where no work is available you will not receive payment. You will only be paid for the hours that you work."

6. Throughout his employment until January 2007 Mr Hussain worked at the Gillette site in Hemel Hempstead on a 56 hour rota on night shift duty. He was one of two who worked only on the night shift. Two other members of staff who worked both day and night shifts were Mr Zak Charran, aged 34, and Mr David Enright, aged 37. The Company had taken over the security function at Gillette and with it the employment of Mr Hussain in March 2006.
7. In January 2007 the contract at Gillette came to an end. Following the Buncefield disaster nearby the site had been little used and it was planned to demolish the gatehouse. On 19 January 2007 letters were written to Mr Hussain and to Mr Charran and Mr Enright. The writer was Mr Philip Rodgers, the Company's contract manager. The letters told them that they would be redeployed and transferred to the position of relief officer from 1 February 2007 until a suitable replacement site could be found. The letters acknowledged the short notice which was being given and asked the recipient to contact the writer or another member of management to arrange alternative working arrangements.
8. At the Tribunal it was the evidence of Mr Rodgers, and the case for the Company, that he telephoned Mr Hussain, Mr Charran and Mr Enright on 21 January and offered them all work at another site, the Gist site, also in Hemel Hempstead. This, as we shall see, was a change from what he said in his witness statement. He said that the work he offered Mr Hussain was permanent light work. Mr Hussain denied that any such conversation took place.
9. At all events on 31 January 2007 Mr Hussain replied to the letter dated 19 January. He said that he had indeed received very short notice. He asked for clarification as to what the position would now be. There was no reply to this letter, a matter on which the Tribunal made comment.
10. On 13 and 15 February 2007 there were telephone conversations in which Mr Hussain was offered temporary assignments in certain places. He refused these assignments.
11. On 15 February Mr Rodgers wrote a letter recording that he had offered Mr Hussain work at "various locations" since the demolition of the gatehouse.
12. On 19 February Mr Hussain replied. He said specifically in his reply that Mr Rodgers had offered him work on two occasions, 13 February and 15 February. He argued that he was a permanent officer, not a relief officer. There was no reply to this letter.
13. On 5 March 2007 Mr Hussain wrote again asking for his concerns to be given attention as a matter of urgency. He raised the question of age discrimination. Mr Rodgers' reply, dated 9 March 2007, includes the following:

"… I would like to assure you that your age has not been taken into account regarding this situation and that we have offered you employment as a relief officer, which you have refused, until a permanent site becomes available."

Similar words are repeated later in this letter. At no point in the letter was there any assertion that Mr Hussain had been offered permanent employment whether at Gist or elsewhere.

The Tribunal Proceedings

14. At the pleading stage the ET1 and ET3 forms do not focus clearly on all the issues which the Tribunal was subsequently to determine. The Company's response stated that the Company offered Mr Hussain alternative sites at which to work but (understandably in the state of the pleadings) did not specify the sites.
15. On 23 October an Employment Judge considered the papers of his own notion. He ordered the preparation of a joint bundle and the exchange of witness statements by 18 December 2008. The witness statements clarified the issues.
16. The witness statement of Mr Hussain dated 22 November 2007 said that he had discovered that Mr Charran and Mr Enright had been given new positions at the Gist site and specifically stated that he knew nothing of that new position and was not considered for it or given the opportunity to put himself forward for it.
17. The witness statement of Mr Rodgers said:

"On 21^st March I offered all 3 officers work at a site called Gist in Hemel Hempstead. We had day and night shifts there. Zach Charran and David Enright accepted positions there but the Claimant turned down the offer as he said he did not like the site. Both Zach Charran and David Enright are still working at the site."

18. That was the state of the evidence when the Tribunal hearing day arrived.
19. At the start of the hearing Mr Adkin, appearing for the company, informed Mr Mackenzie, appearing for Mr Mussain, that the date of 21 March would be corrected. When Mr Rodgers' turn came to give evidence the date was corrected in examination-in-chief. He was cross-examined about the change of date. There was no application for an adjournment.
20. Mr Charran and Mr Enright had not been asked by Mr Hussain's solicitor the precise dates when they were offered work. A statement had been obtained from Mr Charran giving the dates when he and Mr Enright actually started work but it had not dealt with when they were offered work.

The Tribunal's reasons

21. The Tribunal wisely listed Mr Hussain's complaints in paragraph 7 of its reasons. This is a commendable step for a tribunal to take. It clarifies the issues the tribunal had to decide:

"It seems to us that the Claimant's complaint is based in a number of matters: the fact that younger colleagues were transferred to another site in Hemel Hempstead whereas he was not; other members of staff were issued with a uniform and the Claimant was not; the Respondent was in breach of its statutory obligations in not sending him a letter advising him of the date of his retirement; not being treated with greater courtesy; not having speedier responses to correspondence and not being offered work since 15 February 2007."

22. On the question of 21 January the Tribunal said:

"There is a dispute as to fact as to whether or not a telephone conversation took place on 21 January 2007. Mr Rodgers told us that such a conversation did take place. The Claimant states that it did not. We prefer the account given by Mr Rodgers and were satisfied that during the conversation the Claimant was offered permanent light work on the Gist site which is also at Hemel Hempstead. The Claimant declined the offer of work having heard rumours that there were operational difficulties at the site. Conversations also took place between Mr Rodgers, Mr Charran and Mr Enright. The other two members of staff accepted the job. It appears that the third position, which had been offered to the Claimant, was the subject of external recruitment. Unfortunately, no letter confirming that discussion was sent."

23. The Tribunal reached the following conclusions:

"9. In support of his claim, in so far as his complaints related to a transfer to another site in Hemel Hempstead and the non supply of uniforms, Mr Charran and Mr Enright are cited as comparators. The remaining matters were in effect of impression or belief that he had and we were asked to consider the facts and the surrounding circumstances. We considered each of those elements of his claim which we have identified above and reached the following conclusions.

10. We are satisfied that the Claimant's younger colleagues being transferred to another site in Hemel Hempstead had nothing to do with age related discrimination. There was no evidence that we could detect that such a conclusion could be reached. Indeed, based on our findings of fact, we were satisfied that the two comparators were transferred because they accepted the offer of alternative employment. The Claimant was not, because he did not accept the transfer.

11. We were also satisfied that although the uniforms were issued to members of staff in a manner which was not entirely clear to us there was no evidence of any discriminatory approach in their issue. At least one other member of staff significantly older than the Claimant received a uniform and we were satisfied that it was for operational and organisational reasons that the Claimant did not receive one.

12. We were satisfied that the Respondent encouraged long service and wanted older members of staff to remain in post. There are apparently difficulties in recruiting and retention. Experience and length of service were and are attributes valued by the Respondent. There was no evidence that the Respondent wanted or expected the Claimant to retire on attaining the age of 65. It is only when there is an intention to seek retirement that there is any obligation on the Respondent or other employer to give full notification."

The appeal

24. It is necessary to say rather more about the appeal procedure in this case than it might normally be necessary to say.
25. An appeal to the Appeal Tribunal lies only on a question of law. See section 21(1) of the Employment Tribunal Act 1996. But there is a longstanding power discussed in the cases to admit fresh evidence. Generally speaking applications to admit fresh evidence are better dealt with by an application to the Employment Tribunal for a review. The Employment Tribunal has power to grant a review when new evidence has become available or the interests of justice require it. See Rule 34(3)(d) and (e) of the Employment Tribunal Rules 2004.
26. Where an application is made for fresh evidence to be admitted the principles on which the Appeal Tribunal will act are well known. They are now set out in the Appeal Tribunal's Practice Direction at paragraph 8.2:

"The person seeking admission of the new evidence must show that;

(1) the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal hearing;

(2) it is relevant and would probably have had an important influence on the hearing, and;

(3) it is apparently credible."

27. The Practice Direction also sets out a procedure to be followed if there is an application for fresh evidence to be adduced. See paragraphs 8.1, 8.3 and 8.4 of the Practice Direction.
28. The Practice Direction provides for a written application with the Notice of Appeal. The nature and substance of the evidence must be disclosed together with the date when the party first became aware of its existence. The Registrar or a Judge of the Appeal Tribunal will then consider the application, if necessary obtaining comments from the Employment Judge. In some cases the application will be determined in advance of the appeal, but of course if the application really amounts to the substance of the appeal it may be adjourned to be heard on the substantive hearing of the appeal. The provisions of a Practice Direction are, of course, always subject to directions given in a particular case: see paragraph 1.7. The overriding objective of directions given by the Appeal Tribunal is to deal with cases justly.
29. By his Notice of Appeal dated 7 April Mr Hussain told the story of Mr Rodgers' change in evidence. He said the Tribunal should have given him the opportunity to address the amendment of the date in the witness statement of Mr Rodgers. He said that if he had been given notice of the change he would have been able to obtain witness statements from Mr Charran and Mr Enright to the effect that they were offered work later in January or in February 2007.
30. Initially the Notice of Appeal was ruled to disclose no reasonable grounds for appealing: see Rule 3(7) of the Employment Appeal Tribunal Rules 1993 as amended.
31. As he is entitled to do under the Rules Mr Hussain served a fresh, somewhat fuller, Notice of Appeal enclosing statements from Mr Charran, Mr Enright and a Mr Matherson.
32. In his statement Mr Enright said that after receiving the letter dated 19 January he was contacted by Mr Rodgers on 29 January, told to empty his locker that day and told to start working at the Gist site on 2 February.
33. In his statement Mr Charran said that he was telephoned by Mr Rodgers on 29 January and told to empty his locker on that day. It was on 6 or 7 February that he was told to start work at the Gist site on 8 February.
34. The Notice of Appeal did not expressly apply to adduce those statements in evidence but said:

"This evidence of Mr Charran, Mr Enright and Mr Mathirson is relevant and credible and would have had an important influence on the hearing and could have been obtained had notice of the change to the witness statement been given."

35. On 7 August 2007 Elias P directed that the appeal should go through to a full hearing. The order, which was in the Tribunal's standard terms, provided that any application to adduce fresh evidence should be lodged within 14 days. None was lodged.
36. However, the Company has always understood that Mr Hussain wishes in this appeal to rely on fresh evidence. That is plain from correspondence to the Appeal Tribunal last year and from the skeleton argument prepared for the purpose of today's hearing.
37. On 26 January this year, solicitors now instructed for Mr Hussain applied for witness statements to be issued for Mr Enright and Mr Charran. At the same time those solicitors submitted their skeleton argument for the substantive appeal and said at the outset that it was: "An appeal for leave to submit new evidence from Mr Dave Enright and Mr Zach Charran".
38. This skeleton argument was treated as if it were an interlocutory application for leave to adduce new evidence, which was not the intention of its writer. The matter was drawn to the attention of the Registrar; she treated the application as an application to adduce fresh evidence and rejected it, largely on the grounds that the application should have been made within 14 days of the order dated 8 August.
39. In this way we came to the hearing today with an order of the Registrar dated 30 January which on the face of it determined the very issue which the parties had both come along prepared to argue.
40. Mr Mackenzie on behalf of Mr Hussain made an oral application to appeal the order of the Registrar. Mr Adkin did not strongly oppose that application and could point to no prejudice if that course were taken.
41. I referred the appeal, as I am entitled to do, to the full hearing of the Tribunal. We determined that the appropriate course was to hear the appeal against the Registrar's decision and the argument for what would be the full appeal together.

Submissions

42. On behalf of Mr Hussain it is submitted that the Tribunal's finding of 21 January was a critical finding. Prior to the Tribunal hearing he had no reason to suppose that it would be alleged that he and his comparators were all telephoned to be offered posts at Gist on 21 January. The evidence of Mr Charran and Mr Enright tends to show that no such telephone conversations took place on the same day since they were told to report to Gist later and on different dates. It is argued that this evidence could not, with reasonable diligence, have been provided at the hearing of the Tribunal since Mr Hussain was taken by surprise by the allegation.
43. It is submitted that the evidence could have an important influence on the result of the case and that it was credible. It was pointed out that the evidence of Mr Rodgers on this point had not been in his witness statement whereas the Tribunal's interlocutory order had provided for the substantive evidence to be provided in witness statements. For those reasons it is submitted that the order of the Registrar dated 30 January ought to be set aside. The parties have never been in any doubt that today's hearing was to determine the question whether fresh evidence ought to be admitted and the matter returned to the Tribunal.
44. On behalf of the Company Mr Adkin accepts that the new evidence is apparently credible, but submits that it could have been, with reasonable diligence, produced at the Tribunal; and that it would not have an important bearing or influence on the hearing.
45. Mr Adkin submits that on Mr Hussain's behalf it ought to have been appreciated that there was an issue about the date of 21 March. The colleagues of Mr Hussain could have been called live as witnesses, the risk was taken by Mr Hussain and his representatives that if Mr Rodgers gave evidence that he was wrong about the date they might need to be able to counter that evidence by calling Mr Charran and Mr Enright.
46. Further he submits that the evidence was not of critical or substantial importance to the case. The witnesses were not parties to the disputed telephone call; they could not themselves give evidence about that call. Still less could they give evidence about any of the other issues in the case.

.

47. He submits that the precise date of the telephone call between Mr Hussain and Mr Rodgers was not vital. He submitted that the Appeal Tribunal should look at the overall reasoning of the Tribunal, much of which is not appealed, in order to assess whether the evidence would have had an important influence on the hearing.

Our conclusions

48. We accept that Mr Hussain was taken by surprise when Mr Rodgers changed his evidence to suggest that he had offered Mr Hussain and the others employment at the Gist site together by telephone on 21 January.
49. Mr Hussain had come prepared to meet the case that this employment was offered to all three on 21 March. That, he was able to discount by calling evidence that the other two had started at the Gist site long before that date. No doubt it is true that this also involved throwing doubt on the date of 21 March; but Mr Hussain did not know what evidence Mr Rodgers might give. He might easily have said that the others were offered employment earlier and Mr Hussain offered employment on 21 March. Certainly Mr Hussain had no reason to suppose that the date mentioned was going to be 21 January. As we have demonstrated nothing in the contemporaneous correspondence would have alerted him to that date.
50. Until the hearing, therefore, the relevance of establishing precisely when Mr Rodgers offered employment to Mr Charran and Mr Enright would not have been at the forefront of the mind of those preparing the case for Mr Hussain. Once Mr Rodgers changed his evidence the relevance of doing so became clear.
51. We accept that in an ideal world, using hindsight or using a very high standard of preparation, the witnesses might have been called in order to block off any possible change of stance on the part of Mr Rodgers. But the question for us is whether with reasonable diligence the evidence could have been obtained.
52. The purpose of exchanging witness statements in advance of a hearing is to ensure that on important points the evidence of one side is known to the other. In the light of the witness statement of Mr Rodgers we take the view that the evidence of Mr Enright and Mr Charran as to the precise date when they were offered employment could not have been obtained with reasonable diligence for the Tribunal hearing.
53. We consider that the evidence of Mr Enright and Mr Charran as to the date when they were offered employment at the Gist site was relevant and would have had an important influence on the hearing.
54. The allegation of Mr Hussain that the younger men were offered permanent work at the Gist site when he was not was a central allegation of discrimination with actual comparators. The Tribunal rejected it because they accepted Mr Rodgers' evidence that all three were offered work on 21 January.
55. Mr Adkin pointed out that paragraph 4.9 of the Tribunal's reasons did not expressly find that all three were offered work on 21 January but we think this must lie behind the Tribunal's finding because it was Mr Rodgers' evidence and there was no halfway house for the Tribunal.
56. If the Tribunal had heard, and if the Tribunal accepted that Mr Enright and Mr Charran were offered work on different dates, neither of them on 21 January, we think it would have had an important bearing on the case. The Tribunal may have viewed Mr Rodgers change of evidence in a quite different light. They may well have looked again at the contemporaneous evidence which we have quoted, and seen that Mr Rodgers made no mention of an offer of permanent work at the Gist site in February and did not respond to Mr Hussain's letter to the effect that he spoke to Mr Rodgers only on two occasions in February.
57. We wish to stress that it is not every imperfection or irregularity in a hearing which will result in an appeal being allowed. The law finds its place in the real world and must make allowances for twists and turns in litigation, litigation which may be demanding for all concerned. It is particularly important that the law should do so in tribunal proceedings where it is not uncommon for one or both parties to be lay people, some of whom are, and some of whom are not familiar with procedures. But there comes a point where something occurs at a tribunal hearing which is irregular and which a tribunal in fairness ought to have the opportunity to correct.
58. In the result in this case the Tribunal made a critical finding in support of the company's case on evidence which had not been in any witness statement prior to the hearing, notwithstanding an order that such statements were to be exchanged. Such an order requires a party to set out the substance of the evidence on which it relies in writing. The purpose of the order is to avoid parties being taken by surprise.
59. In many cases, of course, additional evidence can be given at a hearing for evidence changed at a hearing without unfairness to any party. As we have said, a hearing itself is capable of absorbing and dealing with many such instances. Sometimes, however, it is not possible for a hearing to do so.
60. On this occasion we are satisfied that Mr Hussain was deprived of the opportunity to obtain evidence on a point of real importance. He could not have anticipated the importance of that point in advance.
61. In those circumstances we will allow the appeal against the Registrar's decision and allow this appeal. We are satisfied that the parties came prepared to deal with the issue which we have determined. We are satisfied that no injustice has occurred by reason of the departure from the Appeal Tribunal's Practice Direction and we waive any compliance with that Practice Direction. The appeal will be allowed.
62. The question arises whether the matter should be remitted to the same tribunal or to a different tribunal. We have in mind the well-known principles set out in Sinclair, Roche & Temperley (A Firm) v Heard [2004] IRLR 763.
63. In this case, as we said before, the matter might well have been dealt with by application for a review rather than by an appeal. At the time when the Notice of Appeal was presented we are told that Mr Hussain was acting with his daughter's assistance, he was not represented. It is unfortunate that he did not make his application for a review to the Tribunal. We bear in mind that if he had done so, in all probability, the same tribunal would have dealt with the matter.
64. We are quite satisfied that the same tribunal is best equipped to deal with a remission. It will be the master of its own procedure. We anticipate that the Tribunal will remind itself of the evidence that was given on the last occasion; that it will be prepared to hear evidence from Mr Hussain's witnesses; and if asked to do so Mr Hussain in cross-examination. We anticipate that it will be prepared to hear cross-examination of Mr Rodgers further and any evidence which the Company wishes to adduce on this question. The Tribunal ultimately will be the master of its own procedure.
65. We are entirely satisfied that the Tribunal will approach professionally and carefully the question whether to revise its findings in the light of the further evidence.
66. We wish to make it clear that it is neither necessary nor appropriate to remit to the Tribunal all the issues which it had to determine. The issue which is remitted is the key issue, whether there was age discrimination arising from the fact that younger colleagues were transferred to the Gist site in Hemel Hempstead whereas Mr Hussain was not.
67. Appeal allowed. Remitted to the same tribunal. An order will follow likewise.