WORLD OF HOME IMPROVEMENTS LTD v MR J COOPER-FREWER (DEBARRED) [2011] UKEAT 0248_10_2402

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2011] UKEAT 0248_10_2402Case No Appeal Nos. UKEAT/0248/10/DA UKEAT/0249/10Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
WORLD OF HOME IMPROVEMENTS LTDAPPELLANTMR J COOPER-FREWER (DEBARRED)RESPONDENT
Before
His Honour Judge Peter Clark Mr B Beynon Mrs D M PalmerDate 24 February 2011
[1]APPEARANCES For the Appellant MR GRAHAM LIVETT (Representative) For the Respondent No appearance or representation by or on behalf of the Respondent. SUMMARY PRACTICE AND PROCEDURE – New evidence on appeal UNFAIR DISMISSAL – Compensation CONTRACT OF EMPLOYMENT – Written particulars Admitting fresh evidence on appeal which ought to have been admitted by Employment Tribunal on review. It related to a matter not in issue at the original hearing but adjudicated on by Employment Tribunal. As a result of the new evidence (Claimant's letter of appointment setting out his terms and conditions) an award under s38 Employment Act 2002 was set aside. The remainder of the appeal failed. A final payment on termination of employment extinguished Claimant's right to PILON. It did not affect Employment Tribunal's award of two weeks loss of pay by way of compensatory award where dismissal for redundancy would have been delayed by two weeks had proper consultation taken place. HIS HONOUR JUDGE PETER CLARK Introduction This case has been proceeding in the Ashford Employment Tribunal. The parties are Mr Justin Cooper-Frewer (Claimant) and World of Home Improvements Ltd (Respondent). We had before us for a full hearing today appeals by the Respondent against(1) the judgment of a Tribunal chaired by Employment Judge Kurrein, promulgated with reasons on 18 February 2010 (the substantive decision) and(2) a review decision by that Employment Judge dated 29 March 2010, summarily rejecting the Respondent's review application. History[2]The Claimant commenced employment with the Respondent as a storeman on 16 November 2006. He was summarily dismissed by reason of redundancy on 24 November 2008. At that time he earned a weekly wage of £270 gross, £221 net. On 9 February 2009 he presented a form ET1 to the Tribunal complaining only of unfair dismissal. At the time of his dismissal he was paid up until 24 November, received one day's holiday pay and what is described by the Tribunal at paragraph 6 of their reasons as a further unidentified payment of ten days pay.[3]The claim was resisted and came on for hearing before Judge Kurrein's Tribunal on 27 January 2010. Evidence was heard from the Claimant and Mr Graham Livett, the Respondent's financial director. We have in these appeals an application by the Respondent to adduce fresh evidence in the form of a witness statement by Mr Livett dated 1 June 2010. We shall admit that evidence for reasons which appear later in this judgment.[4]Mr Livett refers to a copy of his own witness statement before the Tribunal dated 26 June 2009, which deals with the Claimant's pleaded complaint of unfair dismissal. He also exhibits a copy of the Claimant's witness statement in the Tribunal proceedings, which he tells us was handed to the Respondent's then representative, Mr Draper, a legal consultant, on the morning of the hearing. In the fourth paragraph of that one-page unsigned statement the Claimant says this:
"When I joined World of Home Improvements Limited in 2006 I was not given a contract of particulars and therefore do not know what the policies of the company were. This is why I do not know how much redundancy pay I should receive."
[5]It is Mr Livett's evidence that Mr Draper, having been alerted on the day to a potential point about a "contract of particulars" in the Claimant's witness statement, applied for an adjournment to produce further documentation, including the Claimant's letter of appointment. That application was refused on the basis that the Employment Judge would not allow any questions about anything other than "compensation for unfair dismissal". Mr Livett tells us that unfairness of the dismissal was admitted by the Respondent. The case proceeded. The Substantive Decision[6]The Tribunal found that dismissal was by reason of redundancy and was unfair, both automatically under section 98A(1) of the Employment Rights Act 1996 (ERA) and substantively under section 98(4). In respect of unfair dismissal they awarded the Claimant(a) a basic award, being four weeks' gross pay being the minimum prescribed by section 121 ERA; that is £1,080. There is no appeal against those findings. As to(b) the compensatory award for unfair dismissal, the Tribunal found that had the Respondent carried out a proper procedure that would have resulted in the Claimant's dismissal in any event two weeks later. We interpose, that finding represents an approach similar to that taken by the EAT in Mining Supplies (Longwall) Ltd v Baker [1988] ICR 676, Wood J (President) presiding. Two weeks net pay is £442.[7]Further, the Tribunal awarded a 50 per cent uplift under section 31 of the Employment Act 2002 to reflect the Respondent's flagrant breaches of the statutory dismissal procedures, leading to the finding under section 98A(1) ERA of £221. Finally, they held (paragraph 20) that the Claimant had not received a statement of terms and conditions of employment pursuant to sections 1 and/or 4 ERA and, under section 38 of the Employment Act 2002 , awarded a further four weeks gross pay; that is £1,080, under that statutory provision. The Review Decision[8]By a letter dated 3 March 2010, the Respondent applied for a review of the substantive decision. On the first page of that letter they contended that credit ought to be given for the two weeks pay received by the Claimant on termination, thereby extinguishing the two weeks net pay and 50 per cent uplift which made up the Tribunal's compensatory award.[9]On the second page of the letter they contended that the section 38 award in respect of non-provision of a statement of terms and conditions of employment was not raised by the Claimant in his form ET1 and was not an issue before the Tribunal. They wished to put in the Claimant's letter of appointment as satisfying the requirement under section 1 ERA on review.[10]The review application was dismissed by

the Judge by his review decision for these reasons:

"The Claimant was entitled to two weeks notice pay. The Review application has no reasonable prospect of success."
Fresh Evidence[11]The principles upon which this Appeal Tribunal, and indeed employment tribunals, will admit fresh evidence not adduced below are those set out in Ladd v Marshall [1954] EWCA Civ 1 and adopted in this jurisdiction by Popplewell J (President) in Wileman v Minilec Engineering Ltd [1988] ICR 318. There is a threefold test: could the evidence, with reasonable diligence, have been placed before the tribunal at the original hearing; would the evidence have had a significant effect on the outcome; was it apparently credible? Having considered the evidence, we accept that the Claimant's letter of appointment is a credible document. It could have had a significant effect on the outcome so far as the section 38 award was concerned. The question is whether it could, with reasonable diligence, have been adduced at the original hearing.[12]The Claimant has not appeared today; he did not lodge an answer to the appeal and has been debarred from defending. We do not have the Employment Judge's comments on Mr Livett's evidence because he did not in his review decision deal at all with the second page of the Respondent's review application. On the face of Mr Livett's account, and he does appear today and was available for questioning on his witness statement had it been necessary, the section 38 point was not in issue at the Tribunal before judgment was given orally at the end of the hearing. In these circumstances it seems to us that it was reasonable for the Respondent not to adduce that evidence below, although of course it was in existence and in their possession. We shall therefore admit it; in our view it ought to have been admitted on review and to that extent the review appeal succeeds. The Compensatory Award[13]Mr Livett's short point is that the two weeks pay given to the Claimant on termination extinguished the compensatory award and consequent uplift ordered by the Employment Tribunal. However, following discussion this morning, he now accepts that the Claimant was entitled to two weeks pay in lieu of notice under section 86 ERA. That was met by the final payment. In these circumstances, in our judgment, the Employment Judge was correct to refuse that part of the review application. The Claimant was entitled to a further two weeks pay, plus the uplift, in view of the Mining Supplies finding made by the Tribunal. This part of the appeals therefore fails and is dismissed. The Section 38 Award[14]Having admitted the Claimant's letter of appointment dated 20 November 2006, we have considered whether its contents comply with the mandatory requirements of section 1 ERA. We find that it does. Had this issue been spelled out at the original Tribunal hearing, or dealt with on review, we are satisfied that no award would have been made under section 38 of the Employment Act 2002 . Consequently, to this extent only, the appeals succeed. We shall set aside paragraph 5 of the Tribunal's judgment and reduce the total award made in favour of the claimant by £1,080.