Both parties were ordered to prepare a joint bundle and to exchange witness statements, which were to be produced by all witnesses who were to give evidence, before the date of the hearing. The respondent did not comply with this order and the hearing went ahead with a bundle and evidence from two witnesses on the claimant’s behalf. The respondent did not attend the hearing and the Tribunal ruled in favour of the claimant on the evidence before it.

The respondent contended that the ET had erred in several ways, among them that the ET had allowed evidence to be given by witnesses who had not produced and exchanged witness statements in advance, and the bundle had not been given to the respondent. However, it was clear to the EAT that the principal objection made by the respondent was that the claimant was not an employee. The respondent could not complain that its assertion that the claimant was not an employee was rejected on evidence by and for the employee because they had not attended the hearing. Allegations of fraud and illegality were dismissed because they were not made before the day of the appeal.

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Appeal No. UKEATPA/0648/10/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15 November 2010

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

TJ COURIER CHAUFFEUR EXPRESS LTD (APPELLANT)

MR N MAHARJAN (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant MR A ADEBOWALE

(Representative)

**SUMMARY**

**JURISDICTIONAL POINTS – Worker, employee or neither**

**CONTRACT OF EMPLOYMENT – Whether established**

On the Respondent not attending the ET, it could not complain that its assertion that the Claimant was not an employee was rejected on evidence by and for the employee. Allegations of fraud and illegality, not made before the day of the appeal, would not be allowed: Ladd v Marshall.

**HIS HONOUR JUDGE McMULLEN QC**

1. I pre-read the papers together with additional papers relating to a skeleton argument. I refer to the parties as the Claimant and the Respondent.

**Introduction**

2. It is an appeal by the Claimant in those proceedings against the judgment of Employment Judge Henry sitting at Watford, registered with reasons on 29 March 2010. The Claimant represented himself. The Respondent did not attend. The Claimant claimed that there was a failure to provide him with a statement of particulars and that deductions from wages had been made unlawfully. The Employment Tribunal found in the Claimant's favour and awarded compensation in the sum of £3,424.50. The Respondent appeals.

1. In Haritaki v South East England Development Agency [2008] IRLR 945 at paragraphs 1 to 13, I set out my approach to applications such as this under rule 3. The appeal was considered on the sift by HHJ Reid QC who formed the following opinion.

**"The Tribunal made findings of fact on the evidence before it. The Appellant company chose not to be represented. There is no indication of any error of law in the material lodged by the Appellant. If there were problems in relation to the production of an agreed bundle of documents the appellant should have addressed those with the Tribunal before the hearing date. In particular it is noted that there is no suggestion that the Appellant sought to exchange witness statements or take any other steps in accordance with the Tribunal's directions of 17 February 2010. The grounds of appeal disclose no argument with reasonable prospects of success."**

The Respondent exercised its right to apply to a Judge and I am hearing the matter now on the basis of additional material produced by the Respondent's representative: that is Mr Adebowale, its general manager.

**The legislation**

4. The relevant provisions of the legislation appear not to be in dispute. Part 1 of the **Employment Rights Act** provides for a statement of terms to be given to an employee on starting and Part 2 deals with unlawful deductions from pay, the remedy for which is in respect of the former an award of two to four weeks pay pursuant to section 38 of the **Employment Act 2002** unless there are exceptional circumstances and in respect of a claim under Part 2, compensation of the amount found unlawfully to have been deducted.

**The facts**

5. The Respondent is a chauffeur business in Brent, London NW2. It employs several people but as its name implies it engages a number of people to drive its limousines including, prominently on its letterhead 2010, Mercedes. The leading light in this business is Mr Akimbola Sanuade, its managing director. He has the good fortune to be assisted by Mr Adebowale. The Claimant made a claim for the unlawful deductions which I have set out above. In case management, directions were given by Employment Judge Beddoe for a hearing on 23 March 2010. The parties were ordered to prepare a joint bundle by 17 March and to exchange witness statements by 3 March and it was made clear that witness statements had to be produced by any person who was to give evidence. On 21 March Mr Sanuade wrote a letter to the Employment Tribunals in the following terms:

**"This is to inform you that the above company representative, Mr Adebowale, will not be able to attend the hearing as stipulated in your letter. This is due to an emergency call and he has travelled out for the next one week. Thank you for your co-operation."**

The Employment Tribunal never received this letter, this is made clear in a letter subsequently sent to the EAT by Regional Employment Judge Gay, and consequently made no acknowledgement of it. On 23 March the case appears to have gone ahead with a bundle of documents, exhibit R1, and with evidence from two witnesses on the Claimant's behalf. Nothing is said about the Respondent except that he did not attend. Simple facts are found, the main one of which is that the Claimant was an employee between 19 October and 18 December 2009. The Respondent failed to pay the Claimant the sum that he was due and failed to provide a written statement pursuant to section 1 of the **Employment Rights Act 1996** and an award was made. The minimum award under section 38 was ordered to be paid.

6. The Respondent appeals against that order. Mr Adebowale has presented both written and oral arguments before me. At the outset it is important to note that the company chooses to have him represent the company. He has a law degree and in answer to my questions in relation to one ground of appeal he assured me he understood the law of contract; criminal law in relation to fraud and illegality; and procedure.

7. He contends that the Employment Tribunal erred in a number of respects. First the Tribunal allowed evidence to be given by witnesses who had not produced and exchanged witness statements in advance and the bundle said to be bundle R1 which had not been given to the Respondent. There is some force in this complaint. However, it is clear that the principal objection made by the company was on the simple ground that the Claimant was not an employee. It seems to have taken the matter no further. It decided it would not produce a witness statement. Mr Sanuade is the person who would have been involved in the proceedings, for the Claimant in his claim form expressly cites an exchange between the two of them. The company did not produce any documents in advance so inasmuch as Mr Adebowale makes a criticism of the Claimant, the same is due of the Respondent. It is not enough for the Respondent to say we were waiting to hear from the Claimant. The order is upon both of them and both of them failed.

8. It is not surprising to me that, with the Respondent not attending and with no letter before the Employment Tribunal seeking to explain it, the trial went ahead with the Claimant giving his evidence. It is up to the Judge to decide the justice of matters and to case-manage the case and in the circumstances of the Claimant appearing in person, the Judge was entitled to listen to him. The issue seems to have been straightforward.

9. As to the witnesses, Mr Adebowale contends these were hostile. He is right in a sense, not in the legal sense, but in the sense that they were against the Respondent. They were giving evidence for the Claimant. As it happens they subsequently turned up in Employment Tribunal proceedings. The Respondent did not attend, it again being of the view that these were not employees. This time the company went down for an award of about £6,000. The company has appealed to the EAT. The appeal was not properly instituted. It has gone no further. Notwithstanding the experience the company had in respect of the present Claimant, it failed to attend on the next occasion seemingly having learned little from its previous experience. I see no injustice to the Respondent in going ahead with the claim that day. That was the place where there would have been an argument about whether the Claimant was an employee.

10. The next ground of appeal is that the Tribunal made a finding under the unlawful deductions jurisdiction under Part 2. As the Respondent contends in its response form, the claim was acknowledged to be one under the 1994 extension of jurisdiction order, that is claiming breach of contract arising on the termination of the employment of the Claimant. Nevertheless as Mr Adebowale accepts, a claim could have been made under either jurisdiction. In my judgment the wording of the claim form makes it apparent that the grievance of the Claimant was that he had agreed to be paid a sum by the Respondent and the Respondent failed to pay him. On the finding that he was an employee, that claim is exigible under Part 2 and the Judge was right so to hold. This ground is dismissed in particular since ground 8 of the grounds of appeal contends that the Claimant failed to set out the Act in which the wrong occurred. This was a litigant in person and I see no obligation on him to set out the precise statutory definition relied on. The facts were plain.

1. Ground 10 of the grounds of appeal allege fraud and illegality, the Claimant's relationship with the church under whose shelter the leading lights in this drama worship being relevant. As Mr Adebowale notes an allegation of fraud or illegality has to be made expressly. It never has been. Today it is asserted that there is evidence that should be relied upon. I have been shown a photocopy of a passport from Nepal on its face being a passport of the Claimant. I have also been shown an entry on the passport of entry clearance to the UK issued in New Delhi. It says that the Claimant is restricted from recourse to public funds and employment as a doctor-in-training. It is valid for 14 months from 11 August 2009; thus on its face it covered the period during which the relationship existed between the Claimant and the Respondent. In my judgment this is a matter which could have been put to the Employment Tribunal and was not. It was not put to the EAT until today. It does not preclude the Claimant working as a courier; simply as a doctor-in-training. On this material I cannot consider that there are reasonable grounds for establishing that the material should be let in under the principle in Ladd v Marshall [1954] EWCA Civ 1. It would require new evidence to be put before the Employment Tribunal when it was not put before it or before the EAT in either of the skeleton arguments or the Notices of Appeal before today.

12. I do not accept that this case was operated as simply a default judgment. It was a proper hearing albeit the Respondent did not attend. As for section 38, a ground addressed in new grounds today it is for the employer to say why there are exceptional circumstances in which written particulars were not given. I have no doubt what circumstances are relied on by the Respondent. It is that he is not an employee but once it is found that he is an employee, it not an exceptional circumstance. There are no exceptional circumstances put before the Tribunal and this ground of appeal is dismissed.

**Appeal**

13. An application has been made for permission to appeal. Mr Adebowale apparently has instructions on this although his principals have not heard the judgment or my reasons. There is no prospect of success in an appeal to the Court of Appeal. I may be wrong in what I have decided but I will at least be consistent; if it has no prospect of success in the EAT it has no prospect either in the Court of Appeal where there is a good chance that the Claimant would be represented by counsel. This is a limited company and I give the information which Mummery LJ customarily gives to parties in the Court of Appeal about the costs regime. There is an entry cost and there are further costs to be incurred so any corporation seeking to appeal to the Court of Appeal must bear carefully in mind what the cost consequences are. Mr Adebowale, excellent in his submissions to me today, will of course be unable to appear in the Court of Appeal since he has no right of audience unless he is specifically granted one on reason being shown. There is no compelling reason for this matter to go to the Court of Appeal. Permission is refused.