Benfield Automobile Transmissions Ltd v Wylens [1997] UKEAT 426_97_0707

EAT
Benfield Automobile Transmissions Ltd v Wylens
[1997] UKEAT 426_97_0707 · 1997-07-07

JUDGE CLARK:

The Applicant before the London (North) Industrial Tribunal, Mr Wylens, was employed by the Respondent, which is in the business of rebuilding motor transmissions, from 18 March until 27 September 1996.Following termination of his employment he complained to the Industrial Tribunal, inter alia, of unlawful deduction from his wages in respect of holiday pay.The Tribunal decided that that part of his complaint was made out and awarded him 1½ days holiday pay, quantified at £120. They deal with the point at paragraph 9 of their Extended Reasons dated 7 March 1997 in this way:
"On the oral evidence before us we, as a fact, find that Mr Wylens is owed 1½ days' holiday pay, this amounting to £120 based on his basic pay."
By letter dated 11 March 1997 the Respondent applied, first for a review of that part of the Tribunal's decision - that application was summarily dismissed by the Industrial Tribunal Chairman, Mrs M H Don, by a further decision dated 14 April 1997. In that decision at paragraph 2 she said:
"The pay slips were unclear as to the details of the amounts paid to the Applicant. The Tribunal relied upon the oral evidence and found, as a fact, on that evidence that the sum of £120 was owed to the Applicant in respect of unpaid holiday pay. This sum being basic pay."
Secondly, the Respondent appealed against that part of the Tribunal's substantive decision. This is a Preliminary Hearing held to determine whether the appeal raises any arguable point or points of law, to go to a full hearing of the Employment Appeal Tribunal.In advancing the Respondent's appeal, Mr Gunn seeks to argue that the documentary evidence before the Tribunal proved that the Applicant had been paid for the days in respect of which holiday pay was claimed. Those documents show, he submits, that the Applicant was lying in his evidence.As to that submission we should make it clear that it is not our function to re-try questions of fact. The Tribunal was faced with a conflict of evidence and preferred the oral evidence of the Applicant to the documentary evidence in the form of clock-cards, adduced on behalf of the Respondent. We cannot interfere with that finding, there being evidence to support it.Secondly, and this is why it is contended that the Applicant was lying, he submits that before the Tribunal the Applicant gave evidence that pay which the Respondent ascribed to holiday, had in fact been paid in respect of time off sick, as sick pay. The particular absence he apparently said in evidence, was caused by a piece of metal entering his eye.Now the Respondent wishes to adduce further documentary evidence in the form of an Accident Book entry, to show that the relevant sick absence preceded the absences in respect of which holiday pay was claimed. That application formed part of the application for review. It was dismissed by the Chairman under Rule 11(5) of The Industrial Tribunals Rules of Procedure 1993 . There is no further appeal against that review decision and the time for appealing has now expired.The principles upon which further evidence will be admitted, either by the Industrial Tribunal on review, or the Appeal Tribunal in hearing an appeal from the Industrial Tribunal, are similar. First, the party seeking to adduce the further evidence must show that the new evidence was not available before the conclusion of the original Industrial Tribunal hearing, (see General Council of British Shipping v Deria [1985] ICR 198 , a review case) or could not have been obtained with reasonable diligence for use at the hearing (see Wileman v Minilec Engineering Ltd [1988] IRLR 144, further evidence before the Employment Appeal Tribunal).In this case the Accident Book entry supporting documentation was plainly available to the Respondents before the conclusion of the original Industrial Tribunal hearing. Mr Gunn submits, and we accept, that the point about the Applicant's eye injury was not flagged up in his form IT1. However, once he had given that evidence, it was for the Respondent by seeking an adjournment, if necessary, or by arranging to have the accident book brought to the Tribunal, to ensure that the further documentary material was put before the Industrial Tribunal prior to its reaching a decision in the case. This they failed to do. Mr Gunn seeks to rely upon his inexperience in not taking all necessary steps to have the evidence before the Tribunal prior to their conclusion. The inexperience of an advocate before the Industrial Tribunal does not excuse a failure to follow the correct procedural route.In these circumstances we take the view that an application to adduce the further evidence in this appeal is bound to fail, and accordingly we must dismiss this appeal, it raising no arguable point of law.