POWDERSHIRE LTD v MS M DESIR [2000] UKEAT 1100_98_0702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1100_98_0702Case No Appeal No. EAT/1100/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
POWDERSHIRE LTDAPPELLANTMS M DESIRRESPONDENT
Before
Mr Justice LindsayDate 7 February 2000
[1]APPEARANCES For the Appellants MR T ROE (of Counsel) Grunfeld Davis & Co 18 Princeton Street Red Lion Square London WC1R 4BB For the Respondent MR E A BURDEN (of Counsel) Young & Lee No.6 The Wharf Bridge Street Birmingham B1 2JS MR JUSTICE LINDSAY (PRESIDENT) : I have before me a case seeking that directions be given in the matter of Ms M. Desir against Powdershire Ltd, trading as Viksu Designs. Powdershire lost below and appeals. Ms Desir won below and therefore is, of course, Respondent to an appeal and the directions that are sought are in relation to a payslip, which has been found to be amongst the Desir side's papers and which may be material to the appeal, as I shall explain. On 4 December 1995 Ms Desir lodged an IT1 claiming unfair dismissal. She claimed that the dismissal occurred on 30 October 1995 and that Powdershire Ltd (trading as Viksu Design) was the employer. Her IT1 claimed that she had begun work for another firm, Courtyard Designs and had begun with them in December 1992. She claimed that there had been a TUPE transfer and that Viksu or Powdershire had taken over from Courtyard.[2]On 15 February 1996 the Respondent's (Powdershire's) Notice of Appearance took the point that Ms Desir had not had the then-necessary two years' employment and also they denied that there had been a TUPE transfer.[3]The case came before an Industrial Tribunal at London (North) under Mrs Hill on 21 July 1997 when Ms Desir was represented by Mr S. Akande, Legal Advisor, and Powdershire by Mr Hackett, Solicitor. The matter went off:
"The unanimous decision of the Tribunal is that the hearing should be postponed to come before a fresh Tribunal which will consider the preliminary issue as to whether the Applicant has continuous service for the purposes of section 108 of the Employment Rights Act 1996." [and it then went on in a way I do not need to refer to]. But, in the course of the Summary Reasons, the decision says, of Ms Desir: "
She also said that she did not have payslips for the period when she was employed by Courtyard Designs Ltd. The Applicant was not in a position to produce her payslips for production to the Tribunal on the day of the hearing." It is not entirely clear whether "she did not have" meant that they no longer existed, or whether she simply did not have them with her but, for all that, had access to them.[4]In paragraph 4 it said:
"4 As the question of either any break in service or who was an employer for the relevant period was crucial to the issue as to whether or not the Applicant had continuous service, the Tribunal considered that in the interests of justice the hearing should be postponed to enable both sides to exchange such documentary evidence as they held or could obtain relating to the period July to October 1994 and the payments made to the Applicant."
There was a comment also on the fact that little evidence had been gone into that day and hence that the matter need not be reserved to the same Tribunal but could go to another Tribunal.[5]So the nature of Ms Desir's case was that she needed to show that she had begun employment at least by 29 October 1993, that is at the very latest and, moreover, that there had been a TUPE transfer from Courtyard to Powdershire.[6]Then on 3 July 1998 there was a one-day hearing and the new Tribunal held that Ms Desir did have the two-years' continuous employment by Powdershire and its predecessors from January 1993. In other words, they held that there had been a TUPE transfer, but their route to that conclusion was far from uncontroversial. They mentioned that in September 1997 the matter had come before another Tribunal (that is the one to which I have already referred) and they commented that that earlier Tribunal had adjourned the hearing generally, so that the application could proceed on the Applicant producing full documentation showing that deductions from wages, in respect of tax and National Insurance contributions, had been made in respect of all periods of employment prior to 1 October 1994, as required by law. Even by that date, 3 July 1998, the evidence was still unsatisfactory. What the Tribunal said was:
"4 The evidence in this case was unsatisfactory in that there were parts of it that were inconsistent. For example, the Applicant had agreed to produce documentary evidence of payments made but was unable to do so, instead producing a contract of employment … allegedly signed by one of the directors of Courtyard Designs Ltd whose signature appeared to have been misspelt and which was inconsistent with the signature on another document … a deed of assignment, which was almost certainly signed by the relevant director, Ms Thakur. 5 Furthermore, the Applicant signed a P46 indicating that her employment with the Respondent commenced on 1 October 1994 which was inconsistent with her evidence to the effect that her employment with the Respondent commenced when the Respondent took over the business in August 1994. Furthermore the Applicant's recollection of events was inconsistent. For example, she told the September Tribunal that she had received two payments in cash shortly before leaving on her holiday towards the end of August 1994, namely £1,200 by way of salary and £600 by way of holiday pay. However, she at first told this Tribunal that all she had told the September Tribunal was that she had received £1,100 in cash."
[7]Then, as no doubt the Appellants, Powdershire, will say, perhaps generously, but, as Ms Desir will say, justly, the Tribunal concluded:
"6 However, the Tribunal concluded that this was the inevitable effect of memories fading as the years passed by since the relevant events."
And, accordingly, the Tribunal concluded, having set out some circumstances:
"17 In those circumstances the Tribunal was satisfied that there had been a relevant transfer of the undertaking for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 1981 and Section 218 (2) Employment Rights Act 1996."
In the course of that decision, at their paragraph 9 the Tribunal says:
"9 Mr Hackett [whom, it will be remembered was addressing the Tribunal on behalf of Powdershire] submitted that the Applicant had failed to prove that she was an employee, had failed to produce payslips in respect of employment from Courtyard Designs Ltd."
And then the Tribunal continued with other matters which Mr Hackett submitted to be shortcomings in relation to her evidence.[8]The decision having thus been lost by Powdershire, they put in a Notice of Appeal and their amended Notice of Appeal disputes that there was any or any sufficient evidence either for a finding that Ms Desir had started work in January 1993 for any relevant employer or that there had been a TUPE transfer. Both points have been ruled as fit to go to a full hearing.[9]Then on 6 October 1999 the Respondent's Solicitors (the Desir side) applied to put in a document that had not been before the Tribunal below, namely a payslip from Courtyard for January 1993. It had been said to have been by inadvertence overlooked by her earlier advisers. She had changed advisers in the meantime.[10]In the usual way the Registrar here at the EAT therefore wrote off to the Appellant and asked for their views and, on 19 October, the Appellant's Solicitors opposed the introduction of this new evidence. They pointed out that there had been an order earlier for production of documents, that the authenticity even of the documents which had been produced at the Tribunal had been very much in doubt; a fortiori the credibility or authenticity of documents that had not then been produced would be in issue. They pointed out that if a new document was to be introduced such as the payslip then there would have to be a further enquiry into all Ms Desir's financial records at the time to see where the money described in the payslip, which is over £1,000, went. It would seem that it was paid by cheque, although it cannot be said that that is incontrovertibly clear.[11]On 4 November the Registrar asked to see the original of the payslip in question. On 16 November it was sent to the EAT and on 26 November the Registrar indicated that there would need to be a directions hearing on the subject. Since then there has been an affidavit, or more than one affidavit, on the point from the Desir side. There is an affidavit of Surbhi Shah, Assistant Solicitor of Young and Lee on the topic and also of Ms Desir herself, with a full exhibit and today I have had before me Mr Burden, of Counsel, arguing on behalf of Ms Desir, and Mr Thomas Roe, on behalf of Powdershire. The case is made no easier by the fact that I have received an excellent argument from both sides.[12]Mr Burden for Desir recognises that prima facie the appropriate test for the introduction of new evidence in the EAT is the Ladd v Marshall [1987] ICR 318 test, which is the test appropriate for the Court of Appeal, and he shows me Wileman v Minilec Engineering Ltd [1988] ICR 318. That is a case in which that line is accepted. It may be, and he relies upon Borden (UK) Ltd v Potter Ltd [1986] ICR 647, again in the EAT, that the relative informality of EAT and ET proceedings should attend also upon the Ladd v Marshall test. I do not read Borden to that effect. Informality is one thing; admission of evidence that was otherwise available is another. It seems to me that, whilst in some elements of their procedures the EAT and the ET are, quite properly, less formal than one would expect in the High Court or in the Court of Appeal, there is no particular reason for undue or particular leniency or more leniency than the Ladd v Marshall test itself suggests when one comes to the admission of new evidence. The notion that it is desirable that finality should be obtained in litigation is at least as powerful in the ET and the EAT as it is in the High Court and in the Court of Appeal.[13]Mr Burden also argues that the main function of the Ladd v Marshall test is to prevent Appellants, who have lost below, introducing new material rather than of protecting Appellants from further material sought to be introduced by a Respondent who had won below. It is, of course, a feature of Ladd v Marshall applications that they almost invariably are from unsuccessful Appellants, Appellants, in other words, who have lost below. That is almost inevitable and certainly is the most familiar kind of Ladd v Marshall application, but I do not see that, as between the application of the rule to Appellants and Respondents, there should be any particular difference.[14]If, then, the Ladd v Marshall test is the appropriate test, well then, one has to examine exactly what the test is and how each of its limbs is to be applied in the particular circumstances of this case.[15]The payslip is said to have been found amongst the papers relative to the case that was sent from the earlier advisers; whom I will call Oxton, to the present advisers, Young and Lee. It is said that the original payslip was simply sitting on the file and I have been shown the file and shown a yellow post-it sticker which is said to indicate where it was found. Mr Burden points out that the payslip now sought to be introduced and to be relied on, is entirely consistent with the evidence which Ms Desir gave below. It was her case that wage slips had been handed over at the very beginning of her employment by Courtyard. But it seems also to have been her case that they could not be found at the time. At all events, there is no inconsistency between the presence of the wage slip now sought to be introduced and her case as it was put below. It was her case that she was, indeed, employed by Courtyard from an early date and received payslips when she was paid.[16]Mr Burden makes the attractive point that if Ms Desir was fabricating evidence surely she would have taken steps to see that the result of her fabrication had been introduced to the Court. To fabricate evidence and to then sit back when it was not produced would be an extraordinary thing to do. Mr Burden indicates that the interests of justice need to be served, as surely they do, and that here it would be wrong for the case to proceed in the EAT with what could be a crucial piece of evidence missing from the jigsaw which was presented to the ET.[17]The argument will be at the EAT that the judgment in Ms Desir's favour, that she had, indeed, started work for Courtyard as early as January 1993, was a perverse conclusion and it would be wrong, urges Mr Burden, that she should, so to speak, have her hands tied behind her back in fighting that argument and, plainly, if she could produce a payslip of 1992 or early 1993 that would be highly material. He has no objection, on Ms Desir's part, to forensic tests being applied to the payslip should Powdershire think they are necessary. I think that, broadly speaking, illustrates the nature of the argument on behalf of Ms Desir seeking the admission of the document.[18]Turning to Mr Roe's argument, on behalf of Powdershire, he draws attention, as had Mr Burden, to the language of the Ladd v Marshall test and it is cited in Wileman supra at page 321 where it says:
"To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."
[19]And Mr Roe says, plainly this payslip could have been produced had reasonable diligence been exercised. It was, on the Desir evidence itself, sitting there in the file. He takes the point, which I have, in effect, already dealt with in his favour, that there is no material difference between the application of the Ladd v Marshall test where it is a Respondent adducing new evidence to the way it is supplied in the more familiar case, when it is an Appellant seeking the introduction of new evidence. True it is there is no authority either way on the point but in each case finality supports the Ladd v Marshall test being universally applied and it is, of course, a matter of public policy, not just a matter for the choice of the parties.[20]Mr Roe draws analogies with the position of the introduction of new points of law, even where the law argued below was manifestly wrong. If there has been a concession on the subject then the parties will not be allowed to change their case in the EAT and Jones v Governing Body of Burdett Coutts School [1999] ICR 38 , is an example of that approach. If new points of law can be excluded then a fortiori can new points of fact. He argues, again in a manner in which I have already disposed of in his favour, that there is no case for a materially more lenient application of Ladd v Marshall in the EAT and the ET as compared with the High Court and the Court of Appeal. He draws attention to a recent case in the Court of Appeal, as yet not fully reported, Drivers Jonas v Ralph J Lehmann . We have the transcript of the Court of Appeal on 22 June 1999, where there was an application to adduce fresh evidence and the question arose as to whether a litigant in person, who wished to adduce fresh evidence, should be treated differently than those with professional advisers and the answer to that question was "No". It says, in the summary of the case:
"The civil justice system made no provision for repeated trials at which the parties could put forward fresh evidence. There had to be an end to litigation and the rule in Ladd v Marshall (supra) applied in the interests of justice. While the courts were sympathetic to litigants in person there was no scope for breaking the principles in Ladd v Marshall ."
That is the position notwithstanding that there is a case for dealing more severely with those who have professional representation because it may be that in some cases they will have remedies over against their advisers, who have got them into the difficulty, whereas a litigant in person would have no such remedy.[21]Mr Roe draws attention to the passages I have already mentioned, where at the first hearing on 21 July, the subject had come up and "she also said that she did not have the payslips for the period when she was employed by Courtyard Designs Ltd" and the passage where Mr Hackett submitted that there had been no payslips produced and yet, as it seems, no one leapt to their feet, or pulled a gown, or reminded advisers that there was, lying on the file, the very payslip which was said not to have been produced.[22]The first limb of Ladd v Marshall , it seems to me, I must regard as not satisfied by Ms Desir. Reasonable diligence would surely have produced this document for use at the trial.[23]The second limb is satisfied and I need not say anything more about that, but the parties are in issue on the third limb which could be broadly termed credibility. I made the point myself when Mr Burton was opening the case that nothing was heard from the earlier advisers, whom I have called Oxton. It would have been comforting to find an affidavit from them saying, in effect, that yes, they had, on reflection, had the payslip in their file and nonetheless had somehow overlooked it and what a mistake it had been. There is nothing of that kind; rather a letter has been produced (not strictly in evidence, but passed between the parties and handed up to me) that is written on behalf of the Oxton advisers saying that he has no recollection of having seen the payslip before and that to the best of his knowledge it was not in the file at the time. Hardly a helpful contribution so far as concerns Ms Desir.[24]Mr Roe takes the point that were the payslip to be admitted it would open the door to the necessity for a whole number of new issues to be examined. It could be that they would require from the Powdershire side a forensic examination of the slip. Bank records would need to be examined to see if the cheque, as it seems it would have been, for over £1,000, went into a Desir account, or did not. The Bank records have apparently been asked for and it has not been indicated that they are unavailable but they are not, at any rate, yet produced. There would need to be, says Mr Roe, cross examination as to the earlier statements, as it seems they might have been, that Ms Desir did not have a statement for this early period. The ambiguities inherent in the passages I have read from the decision of 21 July 1997 and the observations in response to Mr Hackett's submissions later would need to be explored. There is also a point, says Mr Roe, that the very date on the payslip, 25 January 1993, gives rise to a difficulty because one would expect the payslip to be on the last working day of the month which, he says, was not the 25 th . It is also to be remembered that in the evidence that was before the Tribunal there were doubts and difficulties about credibility of Ms Desir in relation to a produced document and I revert to the passage about the Thakur signature that gave the Tribunal difficulty. I think, in my judgment, it would have to be said that the third element of the Ladd v Marshall test is also failed by Ms Desir.[25]The payslip cannot be regarded as inherently so credible that challenge of it would be unnecessary and one can quite see, in the circumstances, that a detailed challenge would be required before this document could be accepted as proper to be relied upon and the working out of that full enquiry would lead to considerable difficulty. It is not convenient that the evidence should be heard here at the EAT, which is chiefly designed, solely designed, for dealing with points of law and, of course, the Employment Tribunal itself has not had the chance to rule on the evidence at all.[26]I am sorry to be in such a position. It is never comfortable to shut out evidence that could possibly have been of some utility but here the Ladd v Marshall test, it seems to me, cannot be relaxed so as to admit this document and accordingly, notwithstanding an excellent argument from Mr Burden on behalf of Ms Desir, my directions are that this document be excluded from the evidence at the full hearing before the EAT.