MS S MINAKOVA v BROWNLOW PROPERTIES LTD [2011] UKEAT 0381_11_1210

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2011] UKEAT 0381_11_1210

Case No Appeal No. UKEAT/0381/11

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS S MINAKOVAAPPELLANT

BROWNLOW PROPERTIES LTDRESPONDENT

Before

His Honour Judge Peter Clark Ms G Mills

Date 12 October 2011

[1]APPEARANCES For the Appellant MS S MINAKOVA (The Appellant in Person) & MRS E G ADDISON (Interpreter) For the Respondent MR LACHLAN WILSON (of Counsel) Instructed by: Curwens LLP Gladbeck Way Enfield EN2 7HT SUMMARY PRACTICE AND PROCEDURE – Admissibility of evidence UNLAWFUL DEDUCTION FROM WAGES Claimant sought to introduce documentary evidence for first time during closing submissions at end of three day hearing. Properly ruled inadmissible. In any event, unlikely to advance Claimant's case on unlawful deductions which she was unable to establish. HIS HONOUR JUDGE PETER CLARK Introduction This appeal comes before us for full hearing in the following circumstances. By a Judgment with Reasons promulgated on 29 December 2010 a Tribunal sitting at Watford dismissed the Claimant, Ms Minakova's complaints of unfair dismissal and unlawful deductions from wages, brought against the Respondent, Brownlow Properties Limited, by whom the Claimant had been employed as a care assistant at one of their care homes.

[2]Against that Judgment the Claimant appealed. Her first Notice of Appeal was rejected by HHJ McMullen QC under rule 3(7) of the Employment Appeal Tribunal Rules 1993 on the paper sift. She lodged a fresh Notice of Appeal under rule 3(8). Having considered that fresh notice, Judge McMullen again rejected the appeal against the finding of unfair dismissal but, for the Reasons given in a letter dated 20 July 2011 (the rule 3(8) letter) permitted the challenge to the Tribunal's rejection of the unlawful deductions claim to proceed to a full hearing. The challenge was limited to paragraphs 3 and 39 of the Tribunal's Reasons.

[3]The background to the wages claim is as follows. In her form ET1, the Claimant raised a claim for arrears of pay (section 5) without quantifying it in any way. At paragraph 15 of the Particulars attached to the form ET1 she alleged that she was not paid for the whole of her time worked during her employment, between August 2007 and August 2009. By their form ET3, the Respondent denied this part of her claim as well as the unfair dismissal claim. They assert at paragraph 33 that the Claimant had received all payments of wages to which she was entitled. In her written statement put before the Employment Tribunal (see their Reasons, paragraph 4) she contended that she had been paid for only 10 hours per night when she had worked 12 hours. We are told by Mr Wilson, who appeared for the Respondent below as he does today, that in his witness statement Mr Hennegan, the manager of the Ernest Dene Care Home at which the Claimant worked, denied any underpayment.

[4]For the purposes of the substantive hearing before the Employment Tribunal we are also told that the Respondent's solicitors prepared a draft index to the trial bundle of documents, and submitted it to the Claimant, so that she could add any further relevant documents. That index included letters from the Claimant to the Respondent about her pay, and some of her payslips. They appear in the EAT bundle at pages 64-66 and 101-104 and following respectively. Those documents were in the trial bundle at the three day Employment Tribunal hearing held on 20-22 December 2010.

[5]It also appears that the Claimant sent a separate bundle to the Employment Tribunal office, which contained some of the documents in the trial bundle and some additional documents, for example, pages 148 and 153 in the EAT bundle. Those documents were returned to her by the Employment Tribunal. It seems that she did not arrange for the additional documents to be added to the trial bundle before, or during, the hearing until the evidence was complete.

[6]It was when Mr Wilson addressed the Tribunal in closing, submitting that there was insufficient evidence to support the Claimant's wages claim, that she produced her bundle for the first time. Mr Wilson objected to the documents being admitted in evidence at that stage of the hearing, they being new to him. Having considered that objection, the Tribunal ruled at paragraph 3 of their Reasons, that the additional documents would not be admitted in evidence:

"3. The Claimant also claimed unpaid wages. She did not claim wrongful dismissal. Her claim for unpaid wages was not particularised. She sought to put before the Tribunal a set of papers which she had previously sent to the Tribunal office and which the Tribunal staff had returned, with a covering letter making it clear that it was for the parties to prepare an agreed bundle of papers for the Hearing. In that set of papers, there were wage slips and timesheets. However, there was in the papers no statement of the manner in which the Claimant said that she had been underpaid, or to what extent. Furthermore, the Respondent had not seen those papers before the hearing. Mr Wilson on behalf of the Respondent objected to them being admitted on that basis. The Tribunal would have been willing to admit them and adjourn the proceedings to allow Mr Wilson to consider them and take instructions on them, but for the facts that 3.1 the claim would still not have been stated in terms which the Tribunal and the Respondent could understand; 3.2 the claim could and should have been stated in sufficient detail before the hearing started; and 3.3 the Claimant would have been unable (as she admitted) to pay any costs to the Respondent which the Respondent would have incurred as a result of the adjournment. Thus, the Tribunal declined to admit those papers in evidence."

[7]In dismissing the wages claim, the Tribunal said at paragraph 39:

"39. As for the claim of unpaid wages, the Tribunal concluded that it could not make a finding in favour of the Claimant since there was simply insufficient evidence before it to do so."

[8]In the rule 3(8) letter, Judge McMullen identified the point for determination in this appeal as follows. "1. The fresh Notice of Appeal discloses no point of law with a reasonable prospect of success insofar as it relates to unfair dismissal . The procedure in paragraph 3 of the Employment Tribunal Judgment relates only to deductions. 2. The deductions point in paragraphs 3 and 39 of the Employment Tribunal Judgment will go to a full hearing as it is reasonably arguable that the Claimant did what was required in submitting the documents to the Employment Tribunal which were returned, they must have been known to the Respondent since they purport to be records of wages paid by it, and the insurance of the Respondent against costs should have been made known to the Employment Tribunal. Although this is a case management point, the discretion may have been exercised in error."

[9]The insurance point arises from the Tribunal's Reasons for refusing to admit the evidence at paragraph 3, that the Claimant would not be able to pay any costs of an adjournment, the point being made by the Claimant that the Respondent would not itself be liable for the costs of the proceedings because it was acting under a legal insurance policy. That point does not trouble us. If an order for costs had been made in favour of the Respondent, no doubt the insurers would have recovered the costs.

[10]This is a case in which matters understandably appear rather different at an oral hearing where both sides are heard, as opposed to the paper sift when only the appellant's case is considered. In short, having considered the submissions on both sides, we shall dismiss this appeal for the following Reasons: i the application to put in further documentary evidence was made very late in the Tribunal hearing, indeed after evidence had closed. The additional documents, it seems to us, allowing for the fact that the Claimant was effectively a litigant in person and that English is not her first language should, and could nevertheless, have been included in the trial bundle; ii the wages claim was never properly particularised by the Claimant and still has not been to this day; iii the wages claim was plainly before the Tribunal. There was a conflict of evidence between the Claimant and Mr Hennegan; iv it is unlikely that the additional documents which the Tribunal saw would have advanced the Claimant's case over and above the documents already in the trial bundle and the oral evidence which was before the Tribunal; v it was for the Claimant to prove the wages claim. She failed to do so, hence it was dismissed.

[11]In these circumstances we can find no procedural or substantive error of law on the part of the Tribunal. Finally, we should all of us with to express our gratitude to Mrs Addison who has interpreted these proceedings - the Claimant is Russian-speaking - with conspicuous clarity.