Appeal Nos. UKEAT/0594/11/DM
UKEAT/0595/11/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
22 May 2012
Before
THE
HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)
TOKYO INDUSTRIES 5 LTD APPELLANT
(1)
MR P MEGWA
(2) GT SECURITY SERVICES
LTD (DEBARRED) RESPONDENTS
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE
A legally unrepresented employer contended that it had come to a preliminary
hearing unprepared for it to be determined whether it rather than a third party
employed the Claimant, given the way the issues for decision had been set out.
No adjournment was offered. It was argued this was unfair. Held, dismissing
appeal, that since the claim was for unfair dismissal, and the employer’s
response had understood this – since it had said that the Claimant was not and
had never been its employee – no material procedural irregularity had
occurred. The Employment Tribunal was also within its powers to refuse a
review.
THE HONOURABLE MR
JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.
This is an appeal against a decision made by
Employment Judge Singleton at a preliminary hearing in the Newcastle‑upon‑Tyne
Employment Tribunal. Reasons for her decision were delivered on
6 July 2011 and were subsequently amplified at the invitation of
Underhill J, as President of this Tribunal, in a five‑page document
dated 19 December 2011.
Background
2.
The facts of the case may demonstrate the lack of wisdom in approaching
a preliminary hearing that is intended to resolve substantial issues in a case
without considering using the same formalities as might be appropriate for a
full hearing of an Employment Tribunal case and without making it absolutely
clear in advance to all the parties, so there is no possibility of
misunderstanding, precisely what the scope of the hearing and the potential
outcomes will be. In the present case the Employment Judge had to consider
issues that arose from a claim by the Claimant that he had been demoted on
3 January 2011 from a post as head doorman of a nightclub known as
the Tup Tup Palace, then told at a meeting that he was suspended and who, when
the Tup Tup Palace did not continue to pay him, regarded himself as dismissed,
and unfairly so, from his employment.
3.
He alleged in his ET1 that he had been told at the meeting that he did
not work for Tokyo Industries 5 Ltd, the First Respondent (although he
understood they paid him) and now worked with GT Securities Ltd, the Second
Respondent. His claim, however, was clearly brought in the ET1 against Tokyo. The Employment Tribunal joined GT Securities as a Second Respondent. That was
because the response to the claim against Tokyo was simplicity itself. In
paragraph 3 of the ET3, it is said, in handwriting:
“Mr Megwa was engaged with Tokyo Industries as a self
employed doorman and more recently an employee of GT Security.”
4.
And, in the response at paragraph 5.2, just:
“Mr Megwa is not an employee of Tokyo Industries. He is an
employee of GT Security (as has been explained to him).”
5.
In the light of his claim that he was an employee of Tokyo Industries
and had been unfairly dismissed from Tokyo’s employment, Tokyo’s claim that he
was not an employee of theirs (though had been self‑employed) and was
employed by GT Securities, and GT’s response, which was to the effect that he
was not an employee but was engaged by GT as being self‑employed, the
Tribunal determined to hold a Pre‑Hearing Review to consider the
following issues, the terms of which are of importance. They read:
“Whether the claim against the 1st Respondent has any
reasonable prospect of success, and whether the 1st Respondent
should be dismissed from the claim, and
Whether the 2nd Respondent was ever, and is now
still, an employer of the claimant, and accordingly whether the claims against
the 2nd Respondent have any reasonable prospect of success.”
6.
In the notice of the Pre‑Hearing Review the hearing was allocated
three hours, followed by the words, “If you think that is not long enough, you
must give your reasons, in writing, together with your time estimate”, and by a
certain date. When the parties assembled for the Pre‑Hearing Review
Mr Robert Cameron was present for Tokyo, he being the managing
director. A Mr Scott, the security manager for the First Respondent, was
there too. Mr Scott occupied something of a dual role; he was also a
consultant to the Second Respondent. Mr Robson appeared on behalf of the
second Respondent. The Claimant was alone in having any legal representation;
he was represented by counsel. Ms Darwin, who appears for Tokyo before me today and to whose impressive submissions I pay tribute, and Mr Found,
for the Claimant, were not present.
7.
There has been no request for notes of evidence to clarify precisely
what evidence may have been given during the hours of hearing. Mr Cameron says
that he was handed a bundle of documents some 15 minutes prior to the hearing
beginning by counsel for the Claimant. He had brought with him no documents to
support Tokyo’s position. The reason for that was that he felt that the facts
were indisputable; he thought that the hearing was to consider whether
Mr Megwa had a claim against Tokyo at all. He argues that he did not
appreciate, given the wording of the issues, that the employment status of the
Claimant with Tokyo was likely to be discussed at all. The Tribunal came to
the conclusion, contrary to Mr Cameron’s case, that at the time of the
termination of his employment in January 2011 the Claimant had been
employed by the First Respondent. He had not, on his own case, been employed
at all by GT, and his claim against the Second Respondent was therefore
dismissed.
8.
The Judge set out the history. The history, so far as relevant to this
appeal, was that the Claimant worked as a doorman for Pathfinder Ventures;
prior to that, he had worked for a security company called Phoenix Security,
but on 15 December 2007 became an employee of Pathfinder. Pathfinder
has written him a letter on 15 December 2007 confirming his employment at Tup Tup Palace as head doorman for 42 hours per week at a given rate. In 2008 Pathfinder
went into administration. The business of the nightclub was acquired by the First
Respondent. Mr Cameron told the Judge that he believed at that time that
the Claimant was self‑employed. He gave evidence that that was what they
had agreed; the Claimant gave evidence, contrary to that, that he was employed
by Tokyo in succession to Pathfinder, and, for reasons that were set out by the
Judge in her findings of fact and conclusions, she accepted that evidence. The
paragraph reads (paragraph 11):
“Having heard the evidence and having considered relevant
documents as well as considering submissions made on behalf of all parties the
Tribunal found that the claimant was employed by Pathfinder Ventures from
15 December 2007 and that when the first respondent took over the
business in 2008, that employment continued. The Tribunal was satisfied that
there was an obligation on the claimant to carry out his work under the
instruction of Mr Higginson [an employee of the first Respondent] and to
do so personally and that there was an obligation on the employer to provide
that work. The first respondent clearly had control over the claimant,
provided the equipment necessary to do his work and disciplined the claimant
when it felt that he had done something wrong. Whilst tax and national
insurance were never deducted from the claimant’s pay, this in itself is not
conclusive as evidence of a person being self‑employed. For the reasons
set out above the Tribunal found that the claimant was employed by the first
respondent and that that employment continued until it came to an end in
January 2011. In those circumstances the claimant, as he acknowledges,
has no claim against the second respondent. Accordingly, the proceedings
against the second respondent are dismissed.”
9.
She gave directions for the claim to proceed against the First
Respondent on the basis that the Claimant was its employee.
10.
On 20 July 2011 solicitors now acting for Tokyo invited the
Employment Judge to review her decision. They did so on two grounds: first,
that new evidence had become available since the conclusion of the hearing, the
existence of which could not reasonably have been known of or foreseen at the
time; and secondly, that the interests of justice required such a review.
Those echo the provisions of rule 34(2)(d) and (e) of the Employment Tribunals (Constitution and
Rules of Procedure) Regulations. The material part of their
letter states that the solicitors understood that the Claimant had told the
Tribunal that he was paid by Pathfinder, as the letter of
15 December 2007 would have indicated. That had been contested by Tokyo at the hearing, but Tokyo was “not in a position to adduce evidence available to
substantiate such a position”. That new evidence, said the letter, had now
become available. The need for it could not reasonably have been foreseen
because the Respondent could not reasonably have foreseen that evidence of the
Claimant’s relationship with Pathfinder and Phoenix would be required. The
fresh evidence was evidence that instead of being paid as he had claimed by
Pathfinder he had been paid directly by Phoenix. Two documents were produced:
the first, a letter from the managing director of Phoenix Security dated
22 July 2011 confirming that until August 2008 Mr Megwa had
been a self‑employed contractor working at Tup Tup but for Phoenix; and
the second document an invoice recording five days of work ending on
2 August 2008 purporting to show invoices raised on behalf of
Mr Megwa and paid by Phoenix. It was asserted that Phoenix supplied
labour to Pathfinder (at Tup Tup), and Pathfinder did not employ the Claimant.
11.
The solicitors suggested that the new evidence raised questions as to
the credibility of the Claimant’s evidence warranting a review of the existing
Judgment. The Judge requested an explanation why the “new” evidence was not
produced at the hearing. It was then, in a letter of 1 August 2011,
for the first time that the Respondent on paper claimed that it had been
unaware that the Pre‑Hearing Review would centre on whether or not
the Claimant was employed by Pathfinder:
“[…] as it was always the Respondent’s understanding that the
Claimant was self employed at the time the Respondent had taken over from
Pathfinder. […] The Respondent was provided a copy of the letter from
Pathfinder to the Claimant dated 15 December 2007 on the morning of
the hearing. The Respondent was therefore unable to make enquiries in advance
of the hearing in respect of this document.”
12.
The letter goes on to note that Mr Cameron had, during a lunch break
made enquiries. It had been confirmed to him, it is said, that there was
material to show that the Claimant had been self‑employed under a
contract for services with Phoenix Security. After the conclusion of the
hearing Tokyo made further enquiries and then instructed solicitors to make an
application for a review as soon as the new evidence became available.
13.
The Employment Judge, having considered those two letters, on
16 August 2011 refused the application for a review. She did so in
these terms:
“The application for review is refused. The Pre Hearing Review
was to determine whether the claim against either respondent had any reasonable
prospect of success which included determining whether the claimant was
employed by either respondent. All evidence relating to the claimant’s
employment or to a contract for services, if this is what was alleged, should
have been available at that hearing. The application for review discloses no
reason to show why the existence of any new evidence could not have been
reasonably known of or foreseen at that time. Furthermore, on what is set out
in the application, there are no reasonable prospects of the decision being
varied or revoked. The existing Order for Directions stands.”
The Appeal
14.
Tokyo now appeals both the decision of the Pre‑Hearing Review and
the decision to refuse the review.
The Pre-Hearing Review
15.
There are three grounds of appeal in respect of the Pre‑Hearing Review.
Of the grounds initially set out, only those at 7(b), (e) and then (c) have
been advanced, in that order, before me. The first ground is that the
Appellant was misled with regard to the issues falling for determination at the
Pre‑Hearing Review and was denied the right to a fair hearing in breach
of the overriding objective and the rules of natural justice. The second ground, (e),
is that whether for the reasons given or otherwise the Appellant could not
reasonably have been expected to make the evidence referred to available at the
Pre-Hearing Review, and the refusal of the Appellant’s application involved a
misdirection and/or misapplication of the law relating to review applications,
a denial of the right to a fair hearing in breach of the rules of natural
justice, and a conclusion that was perverse (it will be seen that ground of
appeal covers the review hearing). Thirdly, the Employment Tribunal
misdirected itself and/or misapplied the law in its approach to determining by which
of the two Respondents the Claimant was employed disregarding Secretary
of State for Education and Employment v Beatman and Ors [1998] IRLR 431
EAT.
Natural Justice
16.
Ms Darwin argues that this was a case in which Mr Cameron, as
a lay person, was misled by the terms of the issues as set out in the Notice of
Hearing. Whereas a lawyer might appreciate the need to produce documents and
evidence relevant to employment status and not simply assume that the answer
would be obvious to the Employment Tribunal given the stance of GT Securities,
there was nothing in the way in which the issues were set out that clearly told
him that employment status was to be raised; to the contrary. The second
bullet point raised the issue of whether the Second Respondent was an
employer of the Claimant. That issue, in those terms, was not stated in
respect of the first bullet point, which was the one that related to Tokyo. On a fair reading, therefore, of the scheduled issues, there was no reason why he
should have anticipated that the employment status of the Claimant would have
been the subject of the discussion at the Tribunal, still less have understood
that the relationship between the Claimant, Pathfinder and Phoenix would have
any relevance. It plainly did, since the Tribunal founded its ultimate
conclusions in part upon the fact, as it saw it, that there had been a seamless
continuation of employment since the days in which the Claimant was employed by
Pathfinder.
17.
The result was, in effect, that Mr Cameron was bounced into a
consideration of the evidence that he had not anticipated; he was not prepared
for it as he would have been had he had an intimation of what was to be said
against Tokyo. It is axiomatic, she submitted, that a party should in fairness
know what case is to be made against it; Mr Cameron, as a matter of fact,
did not appreciate that, nor was there any reason why he really should have
done. She referred me to the case of Cosgrove and Cosgrove (t/a Fisher’s Tours) [2011] SCLR 546, a decision of the Inner House of the Court of Session. That
was a case in which the manner in which a Traffic Commissioner had conducted a
public inquiry had, in the view of the Inner House, given rise to a breach of
natural justice that was of a material nature. That had occurred because prior
to the start of the public inquiry the appellants had been unaware and had had
no reason to anticipate that the grounds on which the Traffic Commissioner was
considering exercising her statutory powers in respect of their business might
have included two grounds that had not been mentioned in the call‑up
letter. I note that the test that the Inner House appears to have applied was
not one that rested purely upon the factual lack of appreciation of the claimants
in that case but also upon the fact that they had no reason to anticipate that
the grounds for decision would include those they did.
18.
Further, she argues that the case of CP v M Technology School [2010] UKUT 314, a decision of the Administrative Appeals
Chamber of the Upper Tribunal reported at [2010] ELR 757, was in point. At
paragraphs 23‑26 the Judge referred to Cosgrove and
noted that that case had at Tribunal level noted that there was a special duty
upon Traffic Commissioners when dealing with unrepresented operators to
consider whether an adjournment was needed in the context of being taken by
surprise by a new allegation. He thought that a similar duty applied to first‑tier
Tribunals dealing with unrepresented parents in the special needs jurisdiction,
which is that to which the case of CP related. He quoted the
view of Sedley J, as he was, in R v Cheshire County Council ex parte C [1998] ELR 66:
“The power to adjourn is a fundamental aspect of the obligation
resting on all decision‑making bodies to hear both sides, for this
necessarily means giving each party a fair opportunity to put its case and to
contest what others are saying.”
19.
He referred also to R v Thames Magistrates’ Court ex parte Polemis
[1974] 1 WLR 1371, in which the point of an adjournment and the vice of a lack
of it was clearly identified by Lord Widgery LCJ:
“[…] the opportunity to present a case to the court is not
confined to being given an opportunity to stand up and say what you want to
say; it necessarily extends to a reasonable opportunity to prepare your case
before you are called upon to present it. A mere allocation of court time is
of no value if the party in question is deprived of the opportunity of getting
his tackle in order and being able to present his case in the fullest sense.”
20.
Ms Darwin argues, powerfully, that, without the Tribunal here
indicating clearly in advance that it was to consider the question of whether
the Claimant was employed or not by Tokyo, Tokyo was denied, first, knowledge
of the way in which the case might be made against it and, second, the
opportunity, which it would otherwise have taken, of preparing itself in
advance to meet that case. This was a breach of natural justice; the effect
was the same as had happened in Cosgrove, where allegations which
had been raised for the first time at the hearing had been determinative in
part. Here, because of the failure, as she put it, of the Tribunal to make any
advance order for disclosure of documents or for witness statements,
Mr Cameron found out for the first time 15 minutes prior to the hearing
that reliance was to be placed upon the letter of 15 December 2007. The
Employment Judge impermissibly had widened the issues beyond those identified
in the notice calling the Pre‑Hearing Review and ought to have
appreciated that Tokyo had been ambushed at the hearing.
21.
Mr Cameron, in his witness statement, noted that after lunch he
produced documents that appeared to show payments made to the Claimant by way
of invoice. At some stage, he recollects, he said he needed to make enquiries
into the situation in relation to Phoenix and Pathfinder. He does not
recollect whether that was during the hearing or afterwards once the Judge had
delivered herself of her Judgment, which she did immediately at the conclusion
of the hearing. The Judge does not recollect it.
22.
Given this conflict, potentially, of evidence, I have to conclude what
the probabilities are in the light of the material before me. It is common
ground that no application to adjourn the proceedings was made at any stage.
The Judge says in her comments that at the outset of the hearing the issues
that were to be determined had been discussed, and she was satisfied that all
parties understood the issues to be determined and that a possible outcome
might be a finding that the Claimant was employed by the Appellant or by GT or
by neither of them. Accordingly, she would have approached the rest of the
hearing with no reason to suppose, unless something was said to her, that Tokyo had not appreciated that a possible finding was that the Claimant was its employee.
23.
She noted that she had evidence from Mr Cameron that he knew that
the Claimant was employed by Pathfinder when he acquired the business. She has
no recollection of Mr Cameron raising the question of his wishing to make
further enquiries. If he had done during the course of the hearing itself,
then the probability would be, as it seems to me, that the Employment Judge
would have asked further questions. It is likely that she would have asked
whether he needed further time if there was any indication from the way in
which he mentioned the matter that he was concerned to make those enquiries
before a final finding, and it would seem likely that any such comment must
have been made in that light. There is nothing in the Judgment nor in any
other material to suggest that that was said, and, as Mr Found points out,
nothing in the letter from the solicitors to the Employment Tribunal saying the
same.
24.
The conclusion to which I come on probability is therefore that I must
approach this case upon the basis that nothing was said to that effect during
the course of the hearing itself, thought it may well be that something of that
nature was said after the Judgment had been completed.
The Issues
25.
The issues that arise in respect of the hearing itself are whether there
was a denial of natural justice. There would be if the formulation of the
issues was not such as to give Tokyo proper reason to anticipate that
employment status would be at the heart of the case. As a matter of fact,
Mr Cameron says he had no such anticipation, but it is insufficient for
there to be a breach of natural justice for there to be an ignorance by a
party, however understandable, of the issues; what matters is whether that
party has a proper and reasonable opportunity to put forward his case, which
involves a proper opportunity to prepare for it in the light of knowing what
the issues are. Opportunity is to be judged objectively, whereas knowledge is
a matter subjective to the individual. Objectively, then, was there proper
reason for concluding that Mr Cameron did not, or probably did not, have a
proper opportunity to appreciate that the issues included that of employment
status?
26.
Given the brief and clear nature of the ET1, which asserted employment
status, given that anyone, however lacking in legal qualification they might
be, would understand that unfair dismissal arises only from employment, and
given the response in the ET3, which, in its only two significant paragraphs,
both very short and both written by Mr Cameron, as I have been told,
denies employment status, I am quite clear that it was reasonably to be
anticipated that employment status would be central to the hearing to be
conducted by the Tribunal. It is a pity, as I said at the start of this
Judgment, that the issues were not perhaps more clearly drafted, but in this
case, given the nature of the ET1, the issues raised and, for that matter, the
nature of the person who attended on behalf of Tokyo, a managing director, the
only conclusion to which this court can come is that he ought reasonably to
have anticipated that the proceedings would focus upon the issue they did. It
is clear from what he says that he rather assumed that the Employment Tribunal
would accept that GT were the employers in the wider sense of having the
services of the Claimant, as they claimed, and that therefore it was likely
that Tokyo would not be liable: but it would be unreasonable to prepare for a
hearing, central to which was employment status, on that basis.
27.
Further, I note that the hearing was specifically listed for three
hours. That would indicate that there was to be a detailed examination of some
factual position, which in context could only be the employment or other
relationships between the parties. I note too that Mr Cameron attended
with Mr Scott; whether Mr Scott came with the Second Respondent or
with him may be a matter of detail, but he was, as it happens, the security
manager for the First Respondent who had suspended the Claimant in
January 2011. He was a potentially relevant witness. It follows that I
accept Mr Found’s submissions that there is here no breach of natural
justice. Objectively viewed, Mr Cameron had notice of the case against Tokyo, and had a proper chance to meet it.
28.
The second appeal relates to the first but is in respect of the review.
Here, the argument is that the Employment Judge was made aware by the
solicitors’ letter that Mr Cameron felt he had been ambushed at the
hearing by being shown a letter from 2007 asserting an employment relationship
with Pathfinder which he was not in a position effectively to meet because he
did not know in advance that it was to be raised. This therefore raises
different issues from that with which the Pre‑Hearing Review itself was
concerned.
29.
The question for this court is whether the Employment Judge erred in law
in refusing a review upon the grounds on which it was advanced. Those grounds
were fresh evidence and the interests of justice. As Mr Found points out,
the “interests of justice” are not expanded upon more fully. It is not said
that there was a failure of natural justice in Mr Cameron being made aware
of a document upon which the Claimant was to place some weight without proper
chance to meet it. (That was said in the letter of 1 August but by way of
explanation as to why the application for fresh evidence had not been made
earlier.)
30.
The Reasons were attacked by Ms Darwin. The first, that the
Pre-Hearing Review was to determine whether the claim against either Respondent
had any reasonable prospect of success, which included determining whether the
Claimant was employed by either Respondent, she characterises as a mis‑statement;
it was not explicit in the statement of issues. However, the Judge’s Reasons
draw a distinction between what was explicit and what was a necessary finding
and therefore, in that sense, implicit. She accepts in her comments to Underhill
P that it was implicit; so it was, for the reasons I have given. It was a
necessary finding if the Claimant was to have any prospect of success in his
claim for unfair dismissal. This sentence is so clearly linked with the appeal
on the first ground as to fall with it.
31.
The second reason was that all evidence relating to the Claimant’s
employment or a contract of services, if that was what was alleged, should have
been available at that hearing. That is so where the Respondent was asserting,
as it was in its ET3, that the reason why it should succeed was that it did not
employ the Claimant. As to “The application for review discloses no reason to
show why the existence of any new evidence could not have been reasonably known
of or foreseen at the time”, an explanation was given. It was therefore wrong,
submits Ms Darwin, for the Judge to say there was no reason. That is
right if one views the Reasons here as a document that must be approached with
linguistic technicality. If what she meant was no good reason, then the
sense is obvious. That is, to my mind, plainly the sense in which it was
meant. Though short, this Judgment must be viewed in the same way as any other
decision of an Employment Tribunal, which is not to be regarded as an elaborate
and careful piece of formalistic draughtsmanship but as a set of Reasons
addressed to the parties that must be viewed broadly and in context. In
context, the meaning is plain.
32.
The last point, “On what is set out in the application, there are no
reasonable prospects of the decision being varied or revoked”, is a part of the
reasoning with which I have a little more difficulty. The application includes
evidence that could have been material so far as one reads the Employment
Tribunal decision. It was to the effect that Phoenix was an agency. If
Phoenix, as the documents might suggest, paid and employed the Claimant prior
to Pathfinder going into administration in 2008, after which immediately the
Claimant’s services were then rendered to Tokyo, his services would not be
rendered as an employee the transfer of whose employment was automatically
assured by the Transfer of Undertakings (Provision of
Employment) Regulations. He would not have been someone who was, as
the Tribunal assumed him to have been, in seamless employment. Moreover, his
evidence might have had some doubt cast upon it.
33.
It was only the latter of these considerations, however, to which the
solicitors in their letter drew attention; they did not argue that the material
was valid and relevant in any way other than credibility. This perhaps is the
reason why the Employment Judge says that “On what is set out in the
application”, there were no reasonable prospects (though this may perhaps be
the court being guilty of the same vice of failing to read a decision broadly
as that of which it has accused Ms Darwin). I would be inclined to think
that despite Mr Found’s submission, which has some force, that the
Employment Judge is best placed of all to know what relevance the additional
evidence would have if placed into the scheme of things, that there was an
error of law in at least, as Ms Darwin submits, holding that the
relatively low hurdle that it would be necessary to pass before a review were
ordered would not have been surmounted.
34.
However, it would not detract in any way from the force of the earlier
Reasons, which are separate Reasons, for refusing the review. Rule 34(3)
provides that decisions may be reviewed only on the ground that new
evidence has become since the conclusion of the hearing provided its existence
could not have been reasonably known of or foreseen at the time. That does not
apply to this evidence, and therefore it could not be admitted even though arguably
cogent.
35.
That leaves the question whether the interests of justice required such
a review. Here, Ms Darwin takes me to the case of Flint v Eastern Electricity Board
[1975] IRLR 277, [1975] ICR 395, a decision of Phillips J in the Queen’s
Bench division of the High Court. He was considering rules that then came
under Regulation 12 of the appropriate Regulations, which are in similar
but not identical terms to rule 34 of the Tribunal rules. At
paragraph 19 he said this:
“The difficulty comes in the relationship between ‘(d)’ and ‘(e)’.
The conclusion I reach is that paragraph (d) cannot be regarded as
exhaustive of cases where the ground of the application is the desire to call
fresh evidence. It does not, for example, deal with circumstances where,
although the evidence could be foreseen or indeed reasonably or actually known,
it was for some reason or another not available. I think that
paragraph (e) is intended to be a residual category of case designed to
confer a wide discretion on Industrial Tribunals. But I do not think that it
can embrace a case where the application is on the ground of the desire to call
fresh evidence where it was obvious that that evidence was available and there
is no additional factor to be taken into account. In other words, if I may
summarise it, (d) and (e) are not mutually exclusive, but (e) at all events must
be applied in practice with some regard to the kind of case that is intended to
come within (d). And, ordinarily speaking, the case which will be put forward
under (d) and which failed under (d) would fail under (e) also. (e), I think,
exists for the case which, although it may be put forward under (d), has in it
some special additional circumstance which leads to the conclusion that justice
does require a review.”
36.
The current rule at any rate is that “new” evidence must have become
available only since the conclusion of the hearing. Those words, which existed
in the Regulation 12 that Phillips J was considering, seem to me
entirely to cover the particular example that he set out in paragraph 19.
I therefore have difficulty in regarding it as an example of something that
would fall within (e) and not be excluded by (d). But the point he made was
more general: there may be circumstances, in respect of which a court cannot be
prescriptive, in which there is some additional special circumstance that leads
to the conclusion that justice does require a review. Was that the case here?
It cannot simply be that the fresh evidence will have some relevance; that must
be so of any fresh evidence if it is to be received at all, for relevance is
the first and primary condition of admissibility. It must therefore generally
be more than that, or else it would fall foul of (d). In the present case, no
particular circumstance was identified. Mr Found’s arguments that the
Judge would be bound to have in mind the facts put before her has weight. The
decision was based not simply upon a continuation of employment from the days
of Pathfinder but upon features of the relationship as it stood in 2010 and
2011. Those amply suggested that the relationship at that date was not simply
one of self‑employment.
37.
Having considered all the material, I cannot be persuaded that the Judge
here was bound to come to the conclusion that the interests of justice required
a review; it was not perverse of her to decline to do so, as Ms Darwin has
suggested it was. Perversity is a very high hurdle. It requires the onlooker
to say words to the effect of, “My goodness, that was certainly wrong”. It
must be a decision that is wholly impermissible; this was not in that
category. Since I cannot say that the Judge was obliged to come to the
conclusion Ms Darwin argues for, and I cannot see that her error, if it had
been reversed, affected that position, I am of the view that the appeal against
the refusal of the review fails.
38.
That leaves the last matter argued before me; that is, that the Judge
took the wrong approach in determining which of the two possible employers was
the employer of the Claimant. This relies upon the decision before this
Tribunal in Bearman. The facts in Bearman were different
from those here. Ms Bearman and a colleague had worked for the Employment
Service under an arrangement made through the sheltered protection scheme; they
were both disabled. They entered into a contract of employment with a sponsor,
Royal British Legion Industries, and their services were then hired out to the Employment
Service under an agreement between the sponsor and the Employment Service.
Their work with the Employment Service came to an end. They applied to a
Tribunal. The Tribunal decided as a preliminary issue that, although the
contractual documents generated between the three parties were consistent only
with an employment relationship existing between the applicants and the RBLI,
in reality they were employed by the Employment Service. This therefore was
one of those cases in which workers employed by an agency were regarded
nonetheless as employees of the end-user.
39.
The passage upon which Ms Darwin places particular reliance is the
statement that in determining which of two organisations an applicant is
employed by the correct approach is to start with the written contractual
arrangements and to enquire whether they truly reflected the intention of the
parties. If they did, then the next question was whether on the commencement
of their employment the applicants were employees of the Employment Service or
employees of RBLI. If the conclusion was that when properly construed on
commencement of their employment the applicants were employed by RBLI, then the
Chairman ought to have asked the question: did their position change, and if
so, how and when?
40.
The case of Autoclenz v Belcher [2011] UKSC 41 would
be to the effect that the question is not one of intention but one of actual
agreement and identifying what the true terms of the agreement were, but, as a
matter of general approach to the underlying facts, there is much to commend
what is said at paragraph 22 by Morrison J. Where there is a serious
issue to be tried, and where it is asserted that an employee works either for
one party or for another at one and the same time doing the same day‑to‑day
job, then the approach is plainly a sensible one. It is very similar to the
approach that is taken (see Tilson v Alsthom Transport [2011] IRLR 169) to the tripartite arrangements that operate in industry. Do the
contractual arrangements fully explain the relationship between the parties? If
they are consistent with it, then there is no need to look for a further
explanation as, for instance, that the worker concerned is an employee of the end
user rather than of the agent.
41.
The agency issue does not so obviously apply in the present case. There
is no record of the Judge in paragraph 11 having reminded herself of the Bearman
case and having adopted precisely that approach. Mr Found argues, however,
that the decision should be taken as a whole. The Judge plainly considered the
material before her as to whether the Claimant had or had not worked for
Pathfinder and in what capacity. Her reasoning was that the employment
continued seamlessly from then until January 2011. As a finding of fact, that
excludes a separate employer, GT, intervening in October 2010, but, in any
event, at paragraph 8 the Tribunal considered the evidence about what
happened in October 2010. The explanation given to it in the context
shows that the Tribunal was alert and alive to the evidence it had to consider;
it was not in the position in which the Bearman Tribunal was, in
which all the written contractual evidence pointed to there being no contract
but the Tribunal found the opposite.
42.
On the particular facts and circumstances of this case, and given that
the Tribunal did consider the substance of what happened when GT intervened and
came to a conclusion that, although tersely expressed, makes it clear what it
decided, I have concluded that there is no sufficient evidence of an error of
approach as to amount to an identifiable error of law.
Conclusion
43.
Accordingly, whilst recognising, again, the very fine argument put to me
by Ms Darwin, in conclusion I reject each of the three grounds that have
been advanced and with it this appeal. I will add only this. When issues are
identified for consideration at a preliminary hearing intended to last some
time, it is desirable that they should be as clear as possible especially if no
orders are made in respect of disclosure of documents or the exchange of
witness statements for that hearing. Judges considering whether to order a pre‑hearing
which will deal with a significant part of a claim may wish to consider making
such orders in order to ensure that the parties, if they are represented by lay
representatives, are in a position to be as helpful to the Tribunal as the
Tribunal would wish. Those observations, however, do not persuade me that this
Tribunal in the particular circumstances of this case was in error of law.
