MR A H ZARGARAN v ZARGARAN LONDON [2002] UKEAT 1062_01_2210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1062_01_2210Case No Appeal No. EAT/1062/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A H ZARGARANAPPELLANTZARGARAN LONDONRESPONDENT
Before
Mr Justice BurtonDate 22 October 2002
[1]APPEARANCES For the Appellant MR P GREEN (of Counsel) Instructed by: Ms E Campbell Employment Consultant For the Respondents MR P MARSHALL Representative Zargaran London THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an appeal by Mr Abdolhadi Zargaran against a company Zargaran London which was primarily run by his brother, Mr Rasool Zargaran and his wife, with the assistance of a general manager, Mr Marshall. The appeal is against the Decision of the Employment Tribunal sitting at London Central, on 15 and 16 February and 15 and 16 May 2001, the Decision being reserved and being sent to the parties on 23 July 2001.[2]The hearing before the Tribunal was of a preliminary issue as to whether Mr Abdolhadi Zargaran, whom we shall call Abdolhadi, was an employee of the Respondent Company at all. If he was not, then the Tribunal had no jurisdiction to hear the various claims which Abdolhadi had brought against the company, namely unfair dismissal and breach of contract and race discrimination and unlawful deduction of wages. This arose out of a family dispute; Abdolhadi was based in Iran, Rasool (as we shall call him) and his wife were settled in this country.[3]It appears that Rasool had a serious road accident, in 1999, and for a time was unable to run the business of Zargaran London, as he had previously done. A work permit was obtained for Abdolhadi to come to Britain, based upon an application in March 1999. It appears that Abdolhadi came to this country, but returned to Iran in April, making two further visits in August and October 1999. In December 1999, a further work permit was obtained.[4]The facts as found by the Tribunal are set out in paragraph 7 of their Decision, and I repeat them for ease of summary:
"(i) Zargaran London Limited operates from warehouse premises at Staples Corner in London. In addition to Mr and Mrs Zargaran its Directors it employs a full time manager, Mr Peter Marshall, plus various part-time and casual staff. It is clear from the evidence that Mr Marshall runs the warehouse side of the business though Mr and Mrs Zargaran are the only two signatories to the company's bank account. Mr Marshall had been employed since 1996. (ii) By December 1999 Mr Rasool Zargaran had made a remarkable recovery and his general practitioner's evidence was (a) that he had regained full mental capacity and (b) as capable of working four to six hours a day. She was more concerned about his blood pressure and weight gain. He was working "full-time" in the business and was able to travel abroad. (iii) When Mr Abdolhadi Zargaran returned to the United Kingdom on 26 December 1999, ostensibly to manage the Zargaran business," [We shall return to that] "his work permit was no longer valid but he was granted temporary relief to remain so long as he did not enter into employment"
[5]The dispute before the Tribunal related to the period, in respect of which in his Originating Application to the Employment Tribunal Abdolhadi alleged that he was employed by Zargaran London Ltd, namely 19 January 2000 - 6 April 2000, and it was in respect of that period that he claimed he was an employee and the company denied it. The conclusion of the Employment Tribunal was that he was not so employed.[6]The appeal before us is based upon a substantial number of grounds, although they have been, in his very able submissions to us today by Mr Green, slimmed down into some eight submissions, some of which interrelate.[7]Mr Marshall has come here today as the only senior representative of Zargaran London, presently in the country, because Mr and Mrs Rasool are in Iran or Saudi Arabia, where they will, it seems, be remaining until March 2003, and Mr Marshall, on their behalf, has asked for an adjournment of this appeal. We indicated that we would hear the submissions of Mr Green and, if otherwise minded to call on Mr Marshall to do his best on the part of the Respondent Company, would at that stage invite him to make his adjournment application. In the event, as is apparent from the fact that we are now giving judgment, we have heard everything that Mr Green could validly say, on behalf of his clients, but we are not proposing to consider the question of an adjournment because we are minded to dismiss the appeal for the reasons which we shall now give, and consequently, we do not need the assistance of Mr Marshall or those he represents.[8]The central aspect of the appeal obviously arose out of the question as to whether there was a contract of employment between Abdolhadi and Zargaran London, and that has formed the basis of the dispute because this was the hearing of a preliminary issue; there has, of course, been no consideration as to whether any termination of that contract was wrongful or amounted to unlawful dismissal or discrimination. It is significant to point out that the parties fell out in, by the latest, April 2000, and that there was thereafter a breakdown of whatever relationship there had been.[9]Mr Green has given us a very broadbrush picture of what occurred, and not much of the picture appears from the Employment Tribunal's Decision because, rightly, in our judgment, it was not considered material to their conclusion. But this much, at least, has been told us by Mr Green, and we accept: namely that there was a debt, apparently due, in Iran owed by Zargaran London which, we are told by Mr Green, Abdolhadi was asked to pay off by Rasool, and he did so; but the allegation was that Rasool did not then repay Abdolhadi the monies. That led to the service by Abdolhadi of a statutory demand on Rasool and the bringing (justifiably or not, but it does not matter for these purposes, in the Chancery Division) of a bankruptcy action based upon the statutory demand.[10]An affidavit was sworn in those proceedings by Abdolhadi, or a witness statement was provided, because it seems, by way of defence and counterclaim to the bankruptcy action, a cross-claim was put in by Rasool against Abdolhadi and Abdolhadi's statement, which Rasool adopted and cross-referred to in his witness statement in these proceedings, said as follows:
"At no relevant time was there any contractual relationship or any other legal or professional arrangement between me and the Applicants or any of its partners, [the Applicants being Mr and Mrs Rasool Zargaran], or any of its partners capable of giving rise to a claim in law. My assistance in the running of Zargaran London represented no more than an attempt on my part to assist my brother and his family during a difficult period in their life. It was a wholly voluntary arrangement in respect of which no terms were ever agreed, for which I neither received nor expected any remuneration."
There is nothing in the Appellant's evidence to contradict this; it does not disclose either the existence or the nature or terms of any legal relationship.[11]It may be that the parties in the action before us were taking different and inconsistent positions in the Chancery action, but suffice it to say that there were thus issues joined in the High Court and in the Employment Tribunal, although we have been told by Mr Green that those High Court Chancery Division proceedings have, in circumstances unknown at any rate to him, come to an end. The existence of the family dispute and the Chancery Division proceedings may well explain, therefore, not only the breakdown in relationship in April 2000, but also the very considerable bitterness which has evidenced the conduct of the Employment Tribunal proceedings, both at its hearing and since.[12]It was clear, it seems to the Employment Tribunal, that there was more to the work permit than the ordinary case. What, at paragraph 8, the Employment Tribunal said was as follows:
"Our conclusion about the work permit is that it was an inflated document prepared by Miss Percival and signed by Mr [Rasool] Zargaran. It is immaterial as to whether he signed it in blank or completed and the evidence we have heard does not allow us to make a firm finding either way. However we accept Mr Rasool Zargaran's evidence that he had no immediate intention of employing his brother. On his own evidence he was protecting the future of his business, but we consider that to be a flimsy ground for his signature and our finding is that this work permit application was in reality an instrument for ensuring that Mr Abdolhadi Zargaran would be able to claim residence in the United Kingdom. We would not go so far as to say it was a fraudulent application."
Mr Green tells us that Rasool had asserted in oral evidence, although it did not appear in his witness statements, and indeed, was cross-examined on the basis, that he had signed the work permit application in blank, whereas Ms Percival had said he had signed it completed. The Tribunal, as is clear, concluded that it was immaterial to resolve that issue, and made the finding that they did about the reality of the work permit application.[13]The background facts to the work permit are, undoubtedly:(1) that Abdolhadi wanted to have the opportunity to come to this country;(2) that Rasool and his wife were concerned about the health of Rasool, although it had improved by December 1999, and were worried in case Rasool were unable to continue to work and to run the business.(3) It is plain that Abdolhadi had some considerable experience in the carpet business in Iran, but not least as was entirely apparent when he came to give evidence in the Employment Tribunal, his English was wholly inadequate, certainly to carry on any kind of business in this country.[14]The second work permit application, issued, as we have indicated, after the arrival of Abdolhadi in this country, was dated 11 January 2000. It stated as follows, in paragraph 18:
"On or about February 1999 the company's Managing Partner, Mr Rasool Zargaran was critically injured in a road accident. As a result of his injuries, to date his capacity to manage the company effectively including memory, concentration and ability to make decisions remains dramatically reduced. He continues to be under the supervision of both a neurologist and psychologist and is prohibited from driving. It is recommended by his doctor that he works no more than 2 hours per day."
I interpose that that, of course, was not the true position, as was found by the Employment Tribunal in paragraph 7(ii), from which we have quoted. The application continued:
"The proposed employment of Mr Abdolhadi Zargaran is intended to assist the Managing Partner in the carrying out of his duties so as to make it possible for the company to continue its operations. The present application is for a period of 9 months only to allow for the possibility that the Managing Partner's health may improve in the meantime."
[15]There was a description given of the position of General Manager in paragraph 32 and a glowing description of Mr Abdolhadi's skills in paragraph 20. Paragraph 21 was a question "What will their normal hours of work be?" to which the answer was "45 hours" and paragraph 22 said:
"Before deductions, how much will you guarantee to pay the person?"
Answer: "£25,000 per year." The evidence given by Rasool and his wife was that that was a figure which had been recommended to them as the least that was likely to be accepted by the Home Office as a viable amount of money to pay to someone said to be coming in from abroad.[16]The conclusions of the Tribunal as to the work permit, we have read. As to the question as to whether, irrespective of the wording of the work permit, there was a contract of employment between Abdolhadi and Zargaran, the Tribunal set out as follows, in paragraph 9 onwards:
"9 The question remains as to whether, regardless of the work permit application did Mr Rasool Zargaran actually employ Mr Abdolhadi Zargaran in the business. We believe the evidence of the Respondent that the warehouse was closed during January 2000 when Mr Rasool Zargaran and Mr Marshall were in Hanover and that at no time during that period did Mr Abdolhadi Zargaran do any work for the company. In fact from 24 December to 24 January the premises were closed to the public and Mr Abdolhadi Zargaran did not attempt to work there. On 23 January 2000 Mr Abdolhadi Zargaran returned to Iran returning to the UK on 13 February. We have had no evidence that at any time during his purported employment with Zargaran London Limited did Mr Abdolhadi Zargaran enquire about any salary payment. 10 Some time in February and March 2000 Mr Abdolhadi Zargaran and Mr Rasool Zargaran became involved in high court proceedings which are not of immediate relevance to the Tribunal, except to the extent that the correspondence discloses that Sinclair, Roche and Temperary, Ms Percival's employers, were acting on behalf of Mr Abdolhadi Zargaran. Mr Rasool Zargaran had been advised by those acting for him in the bankruptcy proceedings that he should make it clear that Mr Abdolhadi Zargaran was not and had never been his employee. Mr Rasool Zargaran then wrote to his brother on 6 April as follows: "
I write to advise you that I have terminated Mr Abdolhadi Zargaran's position as General Manager with effect from today's date." " The Tribunal continues:
"That letter was copied to the Home Office, the British Embassy in Iran and to Miss Percival."
[17]Mr Green has pointed out, and indeed it has been one of his subsidiary grounds of appeal, that it is not right to say that the letter was copied to Ms Percival; there was a separate letter to Ms Percival, dated the same date as the letter to Abdolhadi, which reads as follows:
"It has come to my attention that during Abdolhadi Zargaran's involvement with my business during my incapabilities, it would appear that Abdolhadi Zargaran has not acted at all times in the best interests of my company and myself. Accordingly, Abdolhadi Zargaran's position as a General Manager is hereby terminated with effect from today's date, and I reserve the right to claim for losses that I and my business have suffered as a result of his actions. I have notified the Overseas Labour Services of my decision."
[18]It is quite plain to us that that is a letter which both takes up a position, so far as the bankruptcy proceedings are concerned, in relation to Ms Percival, then acting in opposition to Rasool and his wife in their bankruptcy proceedings, but also because, of course, it is of the same in substance as is being sent to the Home Office and the Embassy in Iran, of withdrawing support for the work permit, without going so far as to say that the original work permit itself was in any way false, which might have caused further difficulties. It can be seen that that letter which, as the Tribunal points out, is, on the Appellant's case, evidence of an employment relationship between Abdolhadi and Zargaran, does not use the word "employment".[19]The Tribunal point out in paragraph 11 that on 15 February 2000, Abdolhadi attended the warehouse and was refused entry by Mr Marshall, on the instructions of Rasool. The Tribunal say that they accepted Mr Rasool's explanation of the letter of 6 April and then, in paragraph 13, they set out their conclusion as follows:
"We would wish to add that we have not recited all the evidence that we have heard over a number of days. There has been conflicting evidence as to whether or not Mr Abdolhadi Zargaran acted as agent for Zargaran Limited, and as to whether he had been invited to attend an exhibition in Hanover, but our findings have concentrated on the principal issue before us, and to the extent that we have not referred to parts of the evidence put before the Tribunal our reasons are that we have, on the matters that we have set out here, heard no convincing evidence of a contract of employment, work actually done, or remuneration paid, to establish that the Applicant was employed at any time by the Respondents."
The grounds of appeal, to which we have referred were, as we have indicated, slimmed down to eight, and the first was the only one which might be said to be a point of substantive law.[20]The complaint by Mr Green is that not simply has there been no express reference to section 230 of the Employment Rights Act 1996 , but on his submission, the Tribunal did not direct themselves in accordance with it. Section 230 reads as follows:
"(1) In this Act "employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (2) In this Act "contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing."
He submits that the Tribunal should have specifically directed themselves, or at any rate should have acted in accordance with such a direction, so as to explore whether there was not simply a written contract of employment, but one which was either oral, or if not oral, was to be implied from the circumstances of the case. He refers to the fact that there was, or must have been, on the basis of the evidence that was called before the Tribunal, consideration of the intentions of the parties which, although not irrelevant, would or might detract from the overall approach, to which we have referred.[21]We have already referred to one of the sentences in paragraph 8 of the Tribunal's Decision, whereby they said:
"…we accept Mr Rasool Zargaran's evidence that he had no immediate intention of employing his brother"
. Mr Green points out that while stating that, they omitted reference to paragraph 18 of Mr Rasool Zargaran's witness statement in which he said as follows:
"On 3 April 2000, Yvonne Percival telephoned me at my office asking why Abdolhadi had not been paid. I was astounded. Abdolhadi had never worked for the Company and I had no reason to pay him anything. I spoke to my own solicitor who told me I should set the position straight and clear up any confusion. The grant of the Work Permit had clearly given Abdolhadi the impression that he was employed."
Mr Green submits that if there was to be reference to subjective intention, there ought also to have been reference to subjective impression, certainly where that impression was spoken to by the other party to the contact.[22]It is plain, of course, that section 230(2) does underlie any consideration as to whether there is a contract; and if there were any question here, or any acceptable submission that the Tribunal did not approach the matter in that light, or did not ask themselves, for example, whether there was an oral contract or if not an oral contract, one to be implied from the relevant circumstances, they would have erred in law; but it appears quite plain to us that the Tribunal acted entirely in accordance with the law.[23]They considered the question of the work permit in which it might be said a labelling of the relationship could be said to have appeared; this is a matter which Mr Green addresses in paragraph 21 of his Skeleton. They address the letters of 6 April, albeit not getting it quite accurate, as we have set out, but notwithstanding those two documentary pieces of evidence, they reconcile the work permit, it seems quite plain, by two conclusions: first that the work permit in fact, whatever both parties may have said in their evidence, was, in reality, an instrument for ensuring that Abdolhadi would be able to claim residence in the United Kingdom, but secondly, by way of a conclusion, indeed by reference to the very words of the work permit which refers to "intended employment", that, at best, the work permit application was evidence, as at 11 January 2000, of an intention to employ. So far as the letters of 6 April are concerned, they deal with those letters by concluding that they were consistent with there having been no employment, and certainly it is right that no reference to employment is made in those letters. The real issue is whether there were incidents of employment clear on the evidence, the onus of proof, of course being upon Abdolhadi, and as to that, the Tribunal's conclusion is clear, and, in our judgment, unchallengeable.[24]Whatever may have been the position on the work permit application, there is no sign of any contract of employment being capable of being spelt out of the circumstances. What is clear is what the terms would have been if that contract of employment had come into existence, so far as £25,000 and 45 hours a week are concerned, if there is any truth to those at all, and if they are not part of an inflated document, but, absent the work permit application, there is no sign of anything which evidences a contract of employment. As for the real content of any contract of employment, there was no evidence of any remuneration paid, nor any evidence of any remuneration asked for, as the Tribunal records in the Decision at paragraph 9, to which we have referred. Mr Green points out that there was no express mention in the Decision of evidence given in Abdolhadi's witness statement of discussions by him with the company's bookkeeper as to how tax would be accounted for in respect of any salary. That, put at its highest, would be consistent with an intended contract of employment, but particularly, as there was no further discussion, on Abdolhadi's case, no request for payment until after the relationship had ended and no actual payment, it seems to us that takes the matter no further.[25]As for work done by Abdolhadi, that evidence is extremely slim, as is clear from the findings by the Employment Tribunal to which we have referred. Mr Green has taken us to Abdolhadi's witness statement. The highest that the matter can be put on the basis of Abdolhadi's witness statement, even assuming it had been accepted in totality, and he was, of course, cross-examined on it, is contained in paragraph 37. What that shows, although he asserts that it was "part of my employment with the Respondent," is that he went every day to the warehouse and attended to the day-to-day running of the business, including contacting customers, receiving orders and supervising the package of the carpets by the warehouse. It is quite plain that that relates to a period, at least in substantial part, prior to the date at which even he alleges a contract of employment came into existence, on 19 January 2000. The finding of the Tribunal is that the premises were closed to the public, and Abdolhadi did not attempt to work there. That is a finding which, in our submission, cannot be subject to challenge, and Mr Green has not sought to do so, except by reference to paragraph 37 of the witness statement to which we have referred.[26]It is clear that on 23 January 2000, Abdolhadi returned to Iran, so, on any basis, even if the finding of the Employment Tribunal for this purpose is disregarded, the most that can be said is that for a period between 19 January and 22 January (I am not sure how much of that is weekend) Abdolhadi may have attended at the warehouse. From then on he went to Iran, and Mr Green has told us, but no finding in this regard was made by the Employment Tribunal, that that may have had something to do with the debt which formed the eventual subject matter of the bankruptcy proceedings he brought against his brother and sister-in-law, some time later. When he returned from Iran, and so soon as he returned from Iran, it is common ground that he was prevented from going to the premises, and from then until 13 February, until the final falling out of the parties on or about 3 April, he did, even on his own case, no further work for Zargaran.[27]In those circumstances it is quite plain to us that the Tribunal was entitled to find that there was no contract of employment, and that Abdolhadi did no work, and was entitled to no remuneration, pursuant to such contract of employment, at any relevant time, to use the expression used by Abdolhadi himself in his witness statement in the Chancery proceedings.[28]The matter on Mr Green's first ground ends there His other grounds, however, are grounds by way of criticism of the way in which the Chairman, on behalf of the Tribunal, acted in managing what was undoubtedly, as he himself accepts, a difficult hearing, in which the parties were at absolute and complete loggerheads.[29]The first two of his grounds are intertwined, and they relate to the witness statements of Rasool and his wife. At the close of the first part of the hearing on 5 and 6 February 2001, when the matter was adjourned, it seems, according to what Mr Green has told us, that the Chairman indicated to Rasool that he would be wise to produce further witness statements which explained the documentary evidence, namely the work permit and 6 April 2000 letter, which otherwise might be a difficult mountain for him to surmount. This, of course, indicates, put at its lowest, the open minded approach of the Tribunal who, clearly, if Mr Green be right, at that stage was minded to find against Rasool, and was pointing out the difficulties he faced. That kind of approach is to be welcomed by Chairmen of Employment Tribunals, as is the fact that when the parties returned in May, the Chairman wished to ensure that there was no chance of an amicable settlement.[30]Pursuant to that indication by the Chairman, further witness statements were indeed prepared by Rasool and his wife; Rasool, a second statement and Rasool's wife, a first statement. Abdolhadi had gone back to Iran, where he remained, and notwithstanding his knowledge that there were to be adjourned hearings on 15 and 16 May and, indeed, that there were likely to be further statements from Rasool and his wife, he did not plan to return, nor did he do so, for the adjourned hearings, he having given his evidence and been cross-examined. On the return date, 15 May, a third witness statement by Rasool, and a second witness statement by his wife, were produced and served.[31]The submission by the Respondents to the Chairman was that the new witness statements should stand instead of the old ones; there does not appear to have been a great difference between the second witness statement of Rasool and the third, but there was an important difference, to which we will return, on Mr Green's case, between the first witness statement of Rasool and his third, and between his wife's first and second.[32]The Chairman was prepared to allow the Respondents to rely on the new witness statements, and although Mr Green has complained of the fact that there was no adjournment, I do not recollect being told that there was an application for an adjournment, and in any event, his client had not intended to attend, knowing of the possibility of fresh statements, and he had given his evidence on the previous occasion. But, somewhat unusually, the application by the Respondents was not only, as it seems, limited to a right to rely on the fresh statements which could hardly be objected to, given the indication which the Chairman had earlier made, but that they should stand instead of the earlier statement of Rasool.[33]The reason why the Chairman adopted that submission was that she concluded that the earlier statement had not been put before the Court, and consequently could be withdrawn and replaced by fresh statements. That, in itself, may not be a problem if it is simply as a matter of technical procedure; it may even be right if it is intended that the earlier statement should simply not be regarded as the evidence to be given at the Tribunal, in these days when the status of evidence-in-chief served in written form is still not entirely clear, but the position was made worse, so far as Ms Campbell was concerned (the Employment Consultant acting on behalf of Abdolhadi) and certainly in the submission of Mr Green today, because the Chairman made clear, when asked to rule on the matter, that by allowing the new statements to be put in, instead of the old statements, she was intending that there was not to be permitted to be a cross-examination on the old statements, on the basis that the old statements were not, or at rate no longer, before the Court.[34]Mr Green submits that that is an error of law, and although we have not heard submissions on the point by anyone on behalf of the Respondents, we are prepared to accept that that is the case. The result was that Ms Campbell would have wished to have cross examined, but was denied, at any rate, the untrammelled opportunity (we shall return to what we mean by that in a moment) to take up that opportunity, of cross-examining on the following two bases:-(1) as to inconsistencies, if any, between the new statements and the old statement; this would go to credibility insofar as a case had been changed and the credit of the maker of the statement might have reflections upon it, by virtue of those changes;(2) it became clear that Mr Green was submitting, although such was not entirely clear, at any rate to me from the Skeleton, that this meant also that there could be no cross-examination on the contents of the earlier statements, even if they did not amount to inconsistencies, for example, if there were matters which were in the earlier statement, but which were not repeated in the new statements. That might go to credibility; it might, however, go to a matter of substance.[35]The matter did not rest there because in fact it appears from both Mr Green's instructions from Ms Campbell, and indeed, from the Chairman's comments, which have been obtained on Ms Campbell's affidavit, that in fact, although the Chairman did make some attempt to stem the flow, as she saw it, Ms Campbell was, in practice, permitted to cross-examine on the old statements' inconsistencies etc; but because of the view that the Chairman, wrongly, in our judgment, in the circumstances to which we have referred, took, that she was not otherwise going to permit such cross-examination, but was doing so as a matter almost complaisance, it is most likely that the Chairman took no account, or at any rate, insufficient account, of such cross-examination.[36]That is a matter which causes, and has caused this Tribunal some concern, as to whether that error by the Tribunal, in limiting cross-examination of Rasool and his wife, was a material error in terms of having an effect on the conclusion that they otherwise reached. Mr Green has explained to us the substantive point which he submits arises out of that error, and it is one that is also reflected in relation to the other points which he makes. He submits that the consequence, which went in general terms as to an insufficient testing of the credibility of Rasool and his wife, went in particular to an inadequate consideration of the circumstances of the work permit.[37]The major inconsistency, as Mr Green submits, between the early statements and the subsequent statements is that the explanation given in relation to the work permit, and, indeed, in relation to the arrival on to the UK scene of Abdolhadi changed. The earlier answer given was that there was no way in which Abdolhadi could have been of any assistance in the business of Zargaran in this country. His skills were insufficient, and in particular, his language and his knowledge of business in this country were either non-existent, or certainly inadequate, and consequently, the work permit was signed solely for the benefit of Abdolhadi and his family. That changed to the position that there might be some assistance which Abdolhadi could provide, given the illness of Rasool, but that it was not immediately needed and having the work permit application in place, with the possibility of Abdolhadi coming to this country, was a safeguard for the business, in case Abdolhadi's services might be needed.[38]There was in the first statement of Rasool, at paragraph 28, the following statement. "Just by applying for a work permit does not signify an employment by Zargaran London, a fact that is corroborated in a letter of the 30 th December 1999 from Yvonne Percival to the Department of Employment Overseas Labour where in paragraph 4 of that letter, Ms Yvonne Percival says "Mr Abdolhadi Zargaran has not to date taken up employment in accordance with his work permit. However, the position remains open to him and our clients are keen for him to take it up" The second part of this quotation is a lie, as we were never keen for Abdolhadi Zargaran to be employed by us, but given her relationship with Abdolhadi, she has inserted this keenness on our behalf to enhance Abdolhadi's chances of gaining the work permit." Mr Green points out that that statement in the last sentence of 28, which I have just cited, which appeared in the first statement, but did not appear in Rasool's later statements, is inconsistent with the statement in Rasool's own letter to the Department for Education and Employment Overseas Labour Service of 29 December 1999, which ends:
"I can confirm that the position of General Manager remains open and available to Mr Zargaran and that the company needs him to take up this position as soon as possible."
Mr Green says that it would have been, at the very least, a matter for exploration as to how Rasool could say that it was a lie that his clients were keen for Abdolhadi to take up the job, when, in one of his own letters, he stated that the company needed him to take up the position as soon as possible.[39]Mr Green submits that Ms Campbell's being prevented, or at any rate inhibited, in cross-examining, both in relation to the inconsistency - the change from hopeless assistant to safeguard for the business - and in relation to the content of paragraph 28 of the earlier statement, prevented a proper exploration of the credibility of Rasool and his wife. He points out further that, in the Decision of the Employment Tribunal, there are two apparently inconsistent paragraphs. Paragraph 7(iv) of the Decision reads as follows:
"Mr and Mrs Rasool Zargaran were prepared to help Mr Abdolhadi Zargaran to obtain either an extension of the first work permit or a new one. Their rationale was that it would safeguard the business if Mr Rasool Zargaran's health deteriorated."
And in paragraph 8, which we have already recited, the finding that the work permit application was, in reality, an instrument for ensuring that Abdolhadi would be able to claim residence in the United Kingdom. We have already indicated that we have agreed that it was an error for the Chairman to have inhibited cross-examination in the way she did.[40]Before we indicate our conclusions, we should add one other matter, namely the third ground, on which Mr Green relied. It appears that, on the first day of the case, the Appellant, Abdolhadi, was sworn in at 2 pm, and it was agreed that Ms Campbell could read out his statement because the Appellant had difficulty with the English language. It is of course not, in any event, necessary that the statement should be read out loud at all. It is put in evidence as a proof, standing as the evidence-in-chief of the witness; it thereby becomes evidence in full, whether it is read out loud or not, and it is simply a matter of practice, which varies, as we understand it, from Tribunal to Tribunal, as to whether it is, either in whole or in part, read out; on any basis a Tribunal will read it all, and it is all admitted, subject to any express exclusions.[41]The comments on the affidavit by Ms Campbell by Mrs Martin, the Tribunal Chairman, states as follows, at paragraph 4:
"……As chairman I became concerned that matters not relevant to the preliminary issue were being raised, including evidence about a [first] work permit, which had preceded the Applicant's application for a further work permit, which was relevant. I intervened in order to contain the evidence to matters which were relevant. In spite of my intervention Ms Campbell continued to explore matters not relevant to the preliminary issue."
It is quite apparent, therefore that, just as the Chairman attempted to put a rein on what she concluded to be irrelevant, in relation to the earlier witness statements of Rasool and his wife, so too she sought to curtail cross-examination, or at any rate in this case, evidence-in-chief, by Ms Campbell in relation to the first work permit, which was seen by the Tribunal not to be relevant.[42]It is plainly right that it is not central to the application to establish what precisely had occurred in relation to the first work permit, but it seems to us difficult to say that it was not at all relevant to the proceedings, and it certainly seems, and Mr Green has told us, that when the matter came back for further hearing on the third and fourth days, the Respondents were not inhibited either in-chief, or in cross-examination by Ms Campbell, in giving evidence about the first work permit; there was certainly no specific complaint by Ms Campbell that she was prevented specifically from cross-examining on the question of the first work permit, although Mr Green may be right in submitting that if the Tribunal had formed the view that the first work permit was not relevant, they may have been the less interested in hearing cross-examination about it, although, of course, the same would apply to the evidence-in-chief that they appeared to have let in on the topic from the Respondents' witnesses.[43]It is also right to say that provided that the witness statement had gone in as it did, the evidence that Abdolhadi gave in relation to the first work permit was in, and did not need any specific elaboration, and insofar as matters were raised in the witness statements by the Respondents, they could either be cross-examined, or their lateness carried the same consequence as the lateness in respect of all the rest of their evidence, namely that there was in fact an anticipated permission by the Tribunal for further evidence being put in.[44]Mr Green submits that, albeit quite plainly not of as great significance as that relating to the inability to cross-examine on the earlier statements, this inability to cross-examine (if there was) and inability to amplify (if there was) in relation to the first work permit, may have inhibited the proper consideration by the Tribunal of the case as to the second work permit, because of an inadmissible limitation of consideration in relation to the questions with regard to the first work permit. It is certainly true to say that the Decision, when it came, does not make great play of the first work permit, which, indeed, plays hardly any role in the thought processes of the Tribunal, no doubt because of their view that it was not central, and, indeed, Mr Green has not sought to say that it is central, to the case. The question, of course, would be whether inhibition on cross-examination about the first work permit may or may not have meant that there was some lesser consideration of the credibility of witnesses in relation to the second work permit.[45]We therefore turn, taking those second, third and fourth grounds together, to consider the materiality of the limitation. I pause to indicate that, whereas we are satisfied that there was an error in relation to the inhibition of cross-examination about earlier statements, the statement by the Tribunal as to what was concluded to be relevant might rather to be seen to fall into the context of case management; albeit it is always right that case management should be carried out in an even-handed way and, if Mr Green be right, certainly by the time of this second part of the hearing, there was a greater allowance of evidence about the first work permit on the part of the evidence of the witnesses for the Respondents, than there had been in the case of Abdolhadi's evidence.[46]What is the materiality? It is plain that the conclusion reached by Tribunal with regard to the work permit is encapsulated in paragraph 8, which we have already recited. We do not, from our point of view, see such an inconsistency between paragraph 8 and paragraph 7(iv) as Mr Green contends. There is little, if any, inconsistency between a conclusion that the work permit application was in reality an instrument for ensuring that Abdolhadi would be able to claim residence in the United Kingdom, and a statement that Rasool's rationale in being prepared to help Abdolhadi to obtain a new work permit was that it would safeguard the business if Rasool's health deteriorated. Both of them would share the joint purpose of enabling Zargaran to claim residence in the United Kingdom; in the case of Abdolhadi, it would be of one primarily to claim residence, in the case of Rasool, it would be of some safeguard for the business, but we do not see that there is any material inconsistency between those two statements.[47]It is clear that the conclusion of the Tribunal was, as we have said, not to accept in its entirety the evidence of either side on the question of the work permit. If there had been further cross-examination about the work permit and the purposes of the work permit, then, Mr Green submits, credibility might have been affected one way or the other, but the reality is that the Tribunal concluded that the work permit was either immaterial or, at any rate, not determinative. They decided this case on the simple basis of looking for a contract of employment; concluding that the work permit was, at its highest, either an intention or, at any rate, a basis for the possibility of employment, on either side's case. There is no question here of allegation of a conditional contract of employment, or anything of that kind; what is said is that there was a contract of employment to be spelt out, as of 19 January 2000.[48]The Tribunal found that there was no contract, no remuneration and no work, and in those circumstances, the errors in relation to procedure, which were committed by the Chairman, it seems to us, in an attempt - misguided it may have been - to speed on the hearing, and to defuse what was getting, as she saw it, out of control, had no effect whatever on the outcome of the Tribunal's Decision, unanimously to conclude that there was no contract of employment.[49]We turn, very briefly, to deal with the other four matters which were thrown in by Mr Green. I use the word without disrespect, but simply to indicate that they clearly could not on their own, but, in our view also, taken together with the other grounds, mount an arguable appeal.[50]Ground number five was that the Tribunal erred in not reaching a conclusion, one way or the other, as to whether the work permit application was signed in blank, as it seems Rasool asserted orally, or once it had already been completed. The conclusion by the Tribunal was, as we have recited in paragraph 8, that it was immaterial as to whether he signed it in blank or completed, and so they did not resolve that issue. In the light of their conclusion that the work permit application was, in reality, an instrument for ensuring that Abdolhadi would be able to claim residence in the United Kingdom, and was not material, never mind determinative, of the contractual position, it is entirely consistent with the Decision of the Employment Tribunal that they should regard the issue as to whether Rasool had signed it, knowing what the words said or not, as not material.[51]The sixth ground was the criticism of the Tribunal for not giving, as was put by Mr Green, the opportunity for Ms Percival, a professional and a solicitor, to dissuade the Tribunal from the conclusion that the Tribunal reached in paragraph 7(vi) of the Decision, which reads as follows:
"It has been a matter of considerable dispute as to whether Miss Percival was instructed by Mr Abdolhadi Zargaran or Mr Rasool Zargaran. The application for the work permit had to be made by Mr Rasool Zargaran as the prospective employer, who had had no previous dealing with Miss Percival. We believe Miss Percival put herself in a very ambiguous position. She has insisted that she was acting for Mr Rasool Zargaran and not for Mr Abdolhadi Zargaran, but she was not a solicitor of Mr Rasool Zargaran's choice nor did she subsequently bill him for any of the work involved. Our view is that she was more concerned with advancing Mr Abdolhadi Zargaran's interests."
That is, of course, not a finding of professional misconduct, or anything approaching it, by Ms Percival and, if it were, that ought to be dealt with in another place, in any event. She was not a party, and although we can understand her irritation if she feels there was an implication of professional misconduct, that is not a matter for us. All lawyers have to have broad shoulders; no doubt she felt at all times that she was doing her best to facilitate the coming into this country of Abdolhadi.[52]The issue which, alone, the Tribunal were approaching was, whether, when Ms Percival gave evidence in favour of Abdolhadi, her evidence was to be seen as coming from his camp, or coming from Rasool's camp, particularly against the background that, if she was Rasool's solicitor at all at the time, she was not being paid by him, and was, very shortly afterwards, acting against him on behalf of Abdolhadi, in the bankruptcy proceedings; and the view that the Tribunal took is set out in that sub-paragraph.[53]In the Notice of Appeal, there was some mention made of an alleged exchange between Ms Percival and the Chairman at the time she was giving evidence, but that was not pursued either by Ms Campbell's affidavit, or, therefore, in the comments which the Chairman had the opportunity to make, and, consequently, is not being pursued before us by Mr Green, as he could not, in any event, have done. In those circumstances, we see nothing material in this appeal in paragraph 7(vi) of the Tribunal's Decision.[54]The seventh ground was that, in the new statements by Rasool and his wife, there was reference made to the alleged reason why they wanted to stop Abdolhadi coming to the premises in February onwards of 2000. That matter might, of course, be relevant, had there been employment found, and questions of unfair dismissal had been raised; but on the issue as to whether there was a contract of employment at all, the matters were of marginal relevance. Mr Green points out that this formed part of the second tranche of witness statements - the ones in respect of which there was late production.[55]There was, it seems, no application by Ms Campbell to have a particular paragraph complained of struck out, namely that which gave, as one of the reasons why they did not want Abdolhadi to attend the premises, that it had been suggested by a third party that that third party had heard that Abdolhadi had removed some documents from the Respondents' premises. It went in, in those circumstances, and there was an attempt by Ms Campbell to put in a witness statement from that third party, not supported by the presence of the third party and thus itself a hearsay statement, denying the double hearsay in the witness statement of Rasool.[56]The Chairman, apparently, was not enthusiastic to allow that statement in, but in the end did, and said that she would regard it as likely to be of little weight, as she no doubt regarded the double hearsay to which it was a reply. It does not appear to us that either allowing in, only with reluctance, the third party's witness statement, or if this is what is suggested, failing to excise the original matter, or indeed, referring to it in the Employment Tribunal Decision, is a matter which is at all material in the context of this appeal.[57]Finally, there is the error to which we referred earlier, in paragraph 10 of the Employment Tribunal Decision, in referring to the letter to Ms Percival of 6 April as being a copy of the letter sent to the Home Office, rather than being, as it was, a separate letter with longer text. We have already indicated that that letter was no more damaging to either party's case than the shorter letter, given that neither of them referred to employment, and that the Tribunal was entitled to do, as they did in our judgment, namely regard that letter as explained in the same way as they regarded the other letters of 6 April explained; and had they addressed it as being not a copy, but an independent letter, we have no reason to doubt that they would have reached the same conclusion as in paragraph 10 of the Decision. Certainly it does not amount to a ground of appeal against the Decision nor cast any doubt upon the conclusions which the Tribunal otherwise reached, either on its own or taken with the other grounds of appeal.[58]In those circumstances, we dismiss this appeal.