Ball v Marsden [1993] UKEAT 12_93_1106

EAT
Ball v Marsden
[1993] UKEAT 12_93_1106 · 1993-06-11

JUDGE N HAGUE QC:

This is an appeal brought by an employee, Mrs K Ball, from a decision of an Industrial Tribunal sitting in Manchester which was entered on the Register on the 12th November 1992. That decision was made on a preliminary point which arose in the course of Mrs Ball's claim that she had been unfairly dismissed by the Respondent, Mr Marsden.The facts of the matter, briefly, are these. Mr Marsden ran a grocers shop in Leigh, and Mrs Ball started at the end of February 1988 to work there part-time as a shop assistant. Although this does not appear clearly from the Reasons given by the Tribunal, she told us, and we have no reason at all to doubt, that she initially started working on three days a week, from 9.30 to 1.30 on Monday, Tuesday and Wednesday, totalling 12 hours per week, and that was the general pattern which took effect for about the first two years. Then from the 15th January 1990 until the 9th June 1990, due to an illness of some other employee or member of Mr Marsden's family, she worked longer hours and on other days, and her working week was more than 16 hours a week. However, from the 9th June 1990 until the 20th April 1991 she reverted to the Monday, Tuesday and Wednesday mornings pattern but also, when she was asked, sometimes worked at other times particularly on Saturday mornings. During that period although, as the Tribunal found, she normally worked about 12 hours a week, there were a number of weeks when she worked for 16 or more hours a week. From the 20th April 1991 until her employment was terminated at the end of May 1992, she again worked for more than 16 hours per week.The preliminary point that was determined by the Industrial Tribunal arose out of the contention by Mr Marsden that Mrs Ball had not got the two years continuity of employment before her dismissal required under Section 64(1) Employment Protection (Consolidation) Act 1978 as amended, and therefore was debarred from making a claim under the Act. In order to make good that point Mr Marsden had to show that during the period of Mrs Ball's employment there were periods which broke the continuity of employment under paragraph 1(1) of Schedule 13 of the Act and under paragraph 1(3) the onus was on him to do so. Under paragraph 3 of Schedule 13:
"Any week in which the employee is employed for sixteen hours or more shall count in computing a period a period of employment."
So it was important to know whether in certain weeks Mrs Ball worked 16 or more hours a week. It was also potentially important to know whether she worked more than eight hours a week, even though under 16 hours because such weeks might count under paragraph 5(1); and if so, for how many weeks, because under paragraph 5(2) only 26 weeks can be counted under that head. We need not go into the details about that because it is not material for the purposes of this appeal.It was thus crucial for the Tribunal to have evidence of the hours worked in the various weeks of Mrs Ball's employment. She herself had no records of that. It appears that she was merely paid in cash by Mr Marsden without any payslips or other documents of any kind which might have helped.Mr Marsden had some records, though they appear to have been extremely sketchy. Mrs Ball took advice from the local Citizens Advice Bureau and on the 23rd September 1992 a representative of the CAB wrote to the Chairman of the Industrial Tribunals in Manchester asking for what we will call an Order for Discovery, that is to say Further and Better Particulars regarding the dates, hours worked, and salary received by Mrs Ball during the important periods. That request was refused on the grounds that such an Order was not necessary. That request was repeated by a letter of the 5th October 1992 and again refused by a letter dated 9th October 1992. We have been troubled by those two refusals because, it seems to us, that those Particulars were very relevant documents and Mr Marsden's records ought to have been produced beforehand. We find a little difficulty in understanding why the requests were refused. According to Mrs Ball, we are in good company in that, because she has told us, and we have no reason to doubt, that the Chairman of the Industrial Tribunal himself expressed the same view at the hearing and, indeed, she apologised to her that an Order for Discovery had not been made before. However, what then happened apparently was this, that Mr Marsden referred to the records he had, whereupon, on the suggestion of the Chairman, there was an adjournment for the purpose of Mrs Ball seeing Mr Marsden's records and considering the matter.Mrs Ball was represented at the hearing by Mr Kay of the Citizens Advice Bureau. During an adjournment of about 35 minutes, Mr Kay wrote out a schedule of the hours worked in the various weeks in the critical period. That schedule appears at pages 25 and 26 of our bundle. There was, as we understand it, no actual record of the hours worked, but there were some records of the amounts paid out in each week by Mr Marsden to Mrs Ball. By reference to the hourly rate, which during that period was £2.68 (it had been lower earlier on and was increased subsequently) a calculation was done of the number of hours which were worked in the various weeks. That showed that for many of the weeks in question the hours worked were 12 hours, and for some of them they were 16 or more hours, so no difficulty arose about them. There were some of 15 or perhaps 15 1 / 2 hours, according to the Tribunal, about which there would obviously be doubt. There was some disagreement between Mr Marsden and Mrs Ball on these, because Mr Marsden thought that they represented hours when perhaps the shop had closed at 1 o'clock on Wednesday being early closing day, whereas Mrs Marsden said she had to go on until 1.30. The Tribunal, in our view absolutely rightly bearing in mind the onus of proof, gave the benefit of the doubt on that particular issue to Mrs Ball, so that matter was resolved in her favour. Nevertheless, what then happened was that (according to the Chairman of the Tribunal on a Review Decision, which we will come to in a moment) the parties came back with the schedule and it was put forward to the Tribunal as an agreed schedule. On the basis of that agreed schedule and that number of weeks in which the hours worked are shown as under 16 the Tribunal in some detail went into the relevant law and came to the conclusion that, unhappily for Mrs Ball she could not, admittedly only by a few weeks, show that she had a continuous period of employment of two years. They expressed it in that way although technically, of course, the onus was the other way. Once there is evidence of some matter, then the onus of proof really falls away. It is really only relevant when there is no evidence. Here there was evidence, being what the Tribunal treated as agreed evidence.After receiving the Decision, through the Citizens Advice Bureau, Mrs Ball applied for a review of that Decision, the grounds being set out in the letter of the 7th December 1992, in that there was further evidence which came in the form of something from the Wages Inspectorate and in the interests of natural justice. The part concerned with the interests of natural

justice we think can be gathered from paragraph 3 of that letter, which reads:

"Prior to the pre-hearing assessment on October 15th, we had asked twice for an order to be made to provide a copy of the said records, both times these were denied. We were given wages and the sum per hour in 35 minutes during a recess at the hearing."
The Chairman of the Tribunal declined the application for a review and it is relevant to read paragraphs 3 and 4 of his reasons. He says this:
"The fact that the respondent kept no time records was known to the parties and to the Tribunal on 15 October 1992. It was for this very reason that the joint schedule was prepared by means of dividing the wages paid to the applicant by the rate of pay then prevailing. The information offered by the Wages Inspectorate takes the matter no further."
(Interposing there, we have seen the letter from the Wages Inspectorate and we respectfully fully concur with what the Chairman says about that information.)
"3. In respect of the dispute as to whether in certain weeks the applicant worked 16 hours or 15.5 hours, the Tribunal decided in favour of the applicant. It was the applicant's misfortune that even after deciding this particular dispute in her favour she still worked less than 16 hours per week for more than 26 weeks in her last 104 weeks of employment.
4. It is noted that the applicant complains that she was only given the schedule of wages and the sum per hour during a 35 minute recess in the hearing. However, I further note that the applicant did not ask for further time nor did she seek an adjournment to further consider the documentation. Moreover it was accepted by her, and on her behalf, that the schedule of hours prepared jointly for consideration by the Tribunal was accurate. This agreed schedule clearly demonstrates that the applicant worked for less than 16 hours in more than 26 weeks during her last 104 weeks of employment. Such agreed evidence was, and remains, fatal to her ability to demonstrate sufficient continuity of employment."It is clear from those two paragraphs, in particular the reference to the joint schedule in paragraph 3, but more importantly to what is stated in express terms in paragraph 4, that it was accepted by her "and on her behalf", which no doubt means by Mr Kay, that the schedule of hours was accurate and that it was an agreed schedule. That seems to us to have been clearly agreed evidence before the Tribunal. That of course meant that it was not necessary for the Tribunal to hear detailed evidence from either of Mr Marsden or Mrs Ball about factual matters which had thereby been agreed.What has happened now, we think, is that Mrs Ball has in a sense renewed what she has said in her application for a review in her appeal to this Tribunal, because she says that she was disadvantaged on the day of the hearing by the fact that she had not seen the records which had not been produced to her for the reasons we have given. That may be so, but she says now, and we find difficulty in accepting this, that she did not agree them. It seems to us that although she may have had reservations at the time, the impression must have been given to the Tribunal either by her, or by Mr Kay on her behalf (and she is bound by what Mr Kay said) was that the schedule was agreed evidence. That being so it is difficult to see what error of law the Tribunal fell into. It is not suggested that there was any refusal by the Tribunal to give further time for consideration or anything of that sort, and as far as we can see there was no improper pressure of any kind applied to her. She was represented by a responsible person and, if we may say so, we think that Mrs Ball herself is quite intelligent enough to realise that if she had really wanted to dispute this at the time she could have said so.It frequently happens in other kinds of litigation that people agree something (or their representative in the Court says something) which they later have doubts about, but that has always been treated as irrelevant. If a decision is made properly by a Court or Tribunal on matters which are accepted and agreed at the time, it would make litigation of any kind quite impossible if people could come back and say "Oh well, I really didn't mean that, I meant something else" or "I didn't actually agree that despite what my representative told you". At the end of the day we have to decide whether there is any error of law, and there is only an appeal to us on a point of law, and whether there is any error of law in the decision of the Tribunal. Although we have some sympathy with Mrs Ball, having regard to the refusal of the applications for discovery to which we have referred, we think that she is inevitably bound by her agreement of the schedule made at the hearing.For those reasons we must dismiss this appeal.