ARMITAGE REST HOMES LIMITED T/A FAIRVIEW RESIDENTIAL HOME v MRS M BEGUM [2001] UKEAT 0378_01_1209

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0378_01_1209Case No Appeal No. EAT/0378/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ARMITAGE REST HOMES LIMITED T/A FAIRVIEW RESIDENTIAL HOMEAPPELLANTMRS M BEGUMRESPONDENT
Before
Mr Recorder LangstaffDate 12 September 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR RECORDER LANGSTAFF QC This is a Preliminary Hearing in an appeal against the Employment Tribunal sitting at Leeds whose Extended Reasons were promulgated on 12 January 2001. The Employment Tribunal dismissed the employee's complaints of racial discrimination but upheld a complaint of unfair dismissal. This appeal is by the employer against the finding of unfair dismissal. There is no cross-appeal by the employee.[2]The essential facts, which I shall take briefly, are set out in the Reasons of the Employment Tribunal. They are, that the Respondent was a part-time care worker at a residential home owned by the Appellant. She submitted a verbal resignation. The Tribunal concluded that that verbal resignation should, in circumstances which they set out in some detail, have been treated with extreme caution. The Respondent, they held, was not entitled to assume that what happened was an effective resignation.[3]The Notice of Appeal however, does not focus upon the substance of the complaint of unfair dismissal but rather upon the award of compensation which was then subsequently made. In the award of compensation the Tribunal ordered that a total sum be payable of £2,400.40. As part of the reason the Tribunal say, in summary that:
"The Applicant had not obtained other permanent employment since the date of dismissal. She did continue to work at Emm Lane Nursing Home but that work was not, in any form in substitution for the work she carried out for the Respondent. Accordingly, there is no reason to deduct the earnings she received in that employment from her notional loss."
[4]Mr Armitage has submitted a skeleton argument. In that skeleton argument which he has invited us, in his absence, to read and to determine, he suggests that there was and is further evidence available which would show that that finding of fact was wrong. He says in his skeleton argument of 19 August 2001 that he ascertained from a Mr Jomeen, after the award hearing, that the employee had been working for him on a full-time basis throughout the period she had stated she was unemployed. He adds that Mr Jomeen has stated that he will attend before the Tribunal to confirm, with documentary evidence, that that is so if asked or compelled to do so by this Tribunal. He also wishes in support of his case to make further points, amongst them that the employee has made no attempt to pursue the compensatory award perhaps because she was aware that she had lied under oath.[5]He has exhibited to that skeleton argument a letter from a Mr Gary Sargent. That letter discloses that Gary Sargent worked at Emm Lane Care Home. During the time that he worked at that home he says that the Appellant was working and moreover was working on a full-time basis. Unfortunately, he does not say anything in that letter to assist us as to the appeal which Mr Armitage wishes to pursue.[6]Essentially Mr Armitage is asking us to deal with the appeal by admitting fresh evidence. If we are to admit fresh evidence, then he has to bring himself within the restrictions which are imposed upon the courts in general in the case of Ladd v Marshall which apply to this Tribunal as they do to other appellate courts. We have to be shown that the evidence is apparently credible. That it would probably have made a difference in the result. We have to be satisfied that it was not such that with reasonable diligence it could have been brought before the court at the original hearing.[7]We cannot be satisfied that those criteria have been met here because, it seems to us, that the evidence could have been obtained beforehand since it was plainly likely to be material to the issue of compensation. We do not think that the letter we have from Mr Sargent is so clear and cogent as to meet the Ladd v Marshall test. We have no signed affidavit evidence from Mr Jomeen so we are left speculating as to what precisely that evidence might be. We have only Mr Armitage's report of it. Accordingly, since he cannot meet those criteria he cannot ask us to open up this appeal upon an issue of fact which would be resolved by fresh evidence.[8]It seems to us therefore that there is no arguable basis upon which this appeal can go forward and it must stand dismissed. We should add, only for completeness, that we have determined the matter in the absence of Mr Armitage in the light of his invitation to do so. He asked us to do so indicating that the request implied no disrespect for the authority or standing of the members of the Court.