Appeal No. UKEAT/0439/09/DM

UKEAT/0441/09/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 January 2010

Judgment handed down on 1 March 2010

Before

HIS HONOUR JUDGE PETER CLARK

MS J L P DRAKE CBE

MR T MOTTURE

(1) MR M MANNING; (2) MRS J V LONGSTAFF (APPELLANTS)

MIDDLETON MINIATURE MOULDINGS (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellants
MR DAVID ROBINSON-YOUNG (of Counsel)

Instructed by:
Messrs BHP Law Solicitors
Eldon Chambers
23 The Quayside
Newcastle-upon-Tyne
NE1 3DE

For the Respondent
MR STEPHEN HARDY (of Counsel)

Instructed by:
Messrs Pannone LLP
123 Deansgate
Manchester
M3 2BU

PRACTICE AND PROCEDURE

Case Management

Perversity

Whether Employment Tribunal wrongly excluded a written witness statement, the witness being said to be unwell and living in Ireland. On appeal, the Employment Appeal Tribunal found that the witness statement was admitted but no weight was attached to it. That was a matter falling within the Employment Tribunal's wide discretion to regulate its proceedings. Perversity not made out.

1. In this matter the Claimants before the Newcastle-upon-Tyne Employment Tribunal were Mr Manning and Mrs Longstaff; the Respondent was their former employer Middleton Miniature Mouldings Ltd. This is the Claimants' appeals against the remedy Judgments of an Employment Tribunal chaired by Employment Judge Cape which ordered each Claimant to pay to the Respondent the sum of £14,682 by way of damages for breach of contract on the Respondent's counterclaim.

1. By their liability Judgments that Employment Tribunal found that each Claimant had breached their duty of fidelity owed to the Respondent. In the case of Mr Manning the Employment Tribunal found (paragraph 78) that he agreed with the Respondent's sole customer, ATL, during his employment, that ATL would transfer the business to Mrs Longstaff, who had earlier left the Respondent to set up her own competing business and in the case of Mrs Longstaff, that much of her evidence was disingenuous (paragraph 43) and that before she left the Respondent's employment she had agreed with Mr Manning that together they would set up in business and take with them the ATL business (paragraph 66). There has been no appeal against the liability Judgments.

1. The question at the remedy hearing, at which the Claimants had the advantage of representation by Mr Robinson-Young after representing themselves at the liability hearing, was what loss could the Respondent show it had suffered as a result of the Claimants' breach of contract as earlier found by the Employment Tribunal. The Employment Tribunal concluded that as a result of the Claimants' breaches the Respondent was deprived of the opportunity of retaining ATL's business. Without their breaches of contract with the Respondent the Claimants would not have had the springboard which enabled them to secure that business. But for the breach it was probable that ATL would have continued to place its business with the Respondent. Based on that finding the Employment Tribunal calculated the loss attributable to each Claimant, dividing that loss equally between them, as explained, in Mrs Longstaff's case, at paragraphs 76-79 of that remedy Judgment reasons. The same reasoning was applied in the case of Mr Manning.

1. The point taken on appeal by Mr Robinson-Young on behalf of both Claimants is clearly stated in their respective grounds of appeal; that the Employment Tribunal was wrong to exclude the written evidence of Mr Coffey, Managing Director of ATL at the remedy hearing.

1. We have considered Mr Coffey's witness statement. In that 1 page statement he refers to the good relationship which his company, ATL had had with the Claimants and Ashley Renham (now deceased) the former owner of the Respondent. The statement seeks to undermine the Employment Tribunal's original finding of breach of fidelity during their employment with the Respondent. That was an issue resolved by the liability Judgments of the Employment Tribunal and thus not material to the remedy hearing (no attempt was made by the Claimants to adduce evidence from Mr Coffey, either oral or in writing at the liability hearing, instead written evidence was then adduced from Mr Neil Morrison, General Manager of ATL). The only potentially relevant evidence at the remedy stage, contained in Mr Coffey's short witness statement, appears in the last sentence:

"If [the Claimants] had not had their company we would have found another supplier, we would not have stayed with [the Respondent]."

1. It is the Claimants' case that Mr Coffey was in poor health, although no medical evidence is produced and lived beyond the seas, in Ireland, and that in these circumstances his written evidence ought to have been admitted.

1. The first question, it seems to us, having heard the submissions of counsel, is whether the Employment Tribunal excluded or admitted the witness statement of Mr Coffey at the remedy hearing. The statement was clearly put before them.

1. At paragraph 20 of the Manning remedy reasons the Employment Tribunal say:

"…we did have a written statement from Mr Coffey but were not prepared to accept that as he was not available to give evidence or to be cross-examined…."

And at Longstaff, paragraph 20:

"…. We had written evidence from Mr Coffey, the Managing Director about this [the price per unit of production]. We were not prepared to attach any weight to that written statement as Mr Coffey was not available to give evidence under oath or to be cross-examined."

1. We accept the submission of Mr Hardy, looking at both sets of reasons, that the Employment Tribunal did admit the statement of Mr Coffey but attached no weight to it in the circumstances. The evidence was not excluded and the primary basis of the appeals falls away.

1. Mr Robinson-Young takes a secondary and alternative position, that the Employment Tribunal's conclusion that no weight should be attached to Mr Coffey's written evidence was perverse. We reject that submission. It is well established that the weight to be attached to hearsay evidence is essentially a matter for the Employment Tribunal's judgment. The Employment Tribunal is not bound by strict rules of evidence; see ET Rule 14(2). In short, we are wholly unpersuaded that the Employment Tribunal's decision to attach no weight to the witness statement of Mr Coffey in the circumstances of this case can be characterised as legally perverse in the sense explained by the Court of Appeal in Yeboah v Crofton [2002] IRLR 634, paragraphs 92-095 and, we would add in the present context, Noorani v Merseyside TEC Ltd [1999] IRLR 184.

1. In summary, we have concluded that no procedural unfairness in relation to the way in which the Employment Tribunal dealt with Mr Coffey's evidence is made out. Consequently, these appeals fail and are dismissed.