Appeal No. UKEAT/0761/03/TM
                & UKEAT/0762/03/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 January 2004

Before
HIS HONOUR JUDGE PETER CLARK
MR D J HODGKINS CB
SIR WILLIAM MORRIS KBE OJ

MR J A MARTIN	APPELLANT

CONNELL ESTATE AGENTS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D A MARTIN
Representative
	
For the Respondent	MR PATRICK GREEN
(Of Counsel)
Instructed by:
Messrs Shoosmiths
Solicitors
2nd Floor
Exchange House
482 Midsummer Boulevard
Central Milton Keynes
MK9 2SH	

HIS HONOUR JUDGE PETER CLARK

1.	The Applicant, Mr James Martin, was employed by the Respondent Estate Agents as a Residential Sales Negotiator from 17 June until 3 September 2002, when he resigned.  During his employment he was based primarily at the Respondent’s High Wycombe Office until his transfer to their Maidenhead office very shortly before his resignation.

2.	Following termination of the employment he presented an Originating Application to the Reading Employment Tribunal on 25 November 2002.  His complaints then included constructive unfair dismissal; sex discrimination; payment of wages below the National Minimum Wage and a requirement that he worked excessive hours.  The claims were resisted.

3.	The Applicant has throughout been represented by his father, Mr D A Martin.  The Respondent’s case has been handled, until very recently by Mrs Beverley Fitzpatrick, their Head of Human Resources.  The substantive hearing of the complaints took place before an Employment Tribunal chaired by Mrs J Hill on 28 April 2003.  As appears from their decision with Extended Reasons promulgated on 6 May 2003, the Employment Tribunal:

(1)	by the Chairman alone, dismissed an application by the Applicant for the Respondent’s Notice of Appearance to be struck out for failure to comply with earlier Employment Tribunal orders

(2)	observed that at an earlier hearing the constructive unfair dismissal claim had been struck out for want of jurisdiction.  The Applicant had been employed for less than one year and the service requirement under Section 108 of the Employment Rights Act  1996 applied

(3)	dismissed the claim of sex discrimination

(4)	found, on conflicting evidence, that the Applicant had not been required to work in excess of 48 hours per week in breach of the Working Time Regulations 1998.  They further found that he had adequate rest breaks as required by those regulations.

(5)	on that finding concluded that he was not paid below the National Minimum Wage.

4.	Following promulgation of the Employment Tribunal’s substantive decision the Applicant applied, by letter dated 15 May 2003, for a review of that decision.  That application was refused by the chairman alone by a decision with Extended Reasons dated 4 June 2003.

5.	By Notices of Appeal dated 10 June 2003 the Applicant appealed against both the substantive decision and the review decision.  Initially the Registrar declined to accept jurisdiction in either appeal on the grounds that no point of law was raised.  Dissatisfied with those rulings the Applicant took the matter before His Honour Judge McMullen QC under Rule 3(10) of the Employment Appeal Tribunals Rules.  On 24 September 2003, having heard Mr Martin Senior, that Judge permitted the appeals to proceed to a full hearing, giving directions in an order sealed on 1 October.  We should refer to the relevant parts of that Order.

6.	First, it is recorded that the Applicant’s grounds of appeal in relation to (a) the unsuccessful application to debar the Respondent from defending and (b) the unsuccessful sex discrimination claim, were withdrawn.  That leaves open, it is common ground, for challenge at this Full Hearing, the Employment Tribunal’s substantive decision on the 48 hour week point, the associated National Minimum Wage point and the Chairman’s refusal to grant the review application.

7.	Secondly, provision is made in the Order for application to adduce fresh evidence on appeal, drawing attention to the Ladd v Marshall test, applied in this jurisdiction by Popplewell P in Wileman v Minilec Engineering Ltd [1988] ICR 318.

8.	Thirdly, the parties were directed to exchange and lodge with the Employment Appeal Tribunal Skeleton arguments not less than 21 days before the date fixed for this Full Hearing.

9.	Mr Martin Senior produced a skeleton argument on behalf of the Applicant dated 9 January and later an addendum dated 21 January.  At a very late stage the Respondent decided to instruct solicitors to conduct the appeal hearing.  Those solicitors instructed Mr Patrick Green of Counsel, who produced a skeleton argument, with a bundle of 6 authorities there referred to, on Wednesday 28 January.  Copies were faxed to Mr Martin Senior that afternoon.  Although at first concerned as to his ability to deal with the Respondent’s case at short notice, this morning Mr Martin Senior has indicated to us that he is prepared to proceed and has, if we may say so done, so with considerable thought and courtesy.

10.	Central to the outstanding issues in the appeal is the proposition advanced by Mr Martin that a Schedule of diary entries said to be taken from the Respondent’s High Wycombe Diary for 2002, produced in evidence below by the Branch Manager, Mr Jason Wright did not accurately reflect the actual Diary entries.  The difficulty is that the Diary itself was not in evidence before the Employment Tribunal.  Thus, in order to test that proposition, which is not accepted by the Respondent, it would be necessary for us to see the Diary itself.  In order to do that we must admit it by way of fresh evidence on appeal.  Copies of relevant entries on the Applicant’s case are within our bundle.  But before doing so, Mr Martin must satisfy the 3 stage Ladd v Marshall test.  The first question, therefore, is whether the Diary could not, with reasonable diligence, have been put in evidence before the Employment Tribunal.

11.	The relevant history of the matter is this.  On 20 March 2003 Mrs Fitzpatrick sent to Mr Martin the Respondent’s proposed bundle of documents.  There were 15 items.  At the foot of the list was this note:

“High Wycombe 2002 office diary will be available at the Tribunal Hearing.”

On 22 March Mr Martin Senior replied.  He said this:

“If the High Wycombe 2002 office diary is to be referred to at the Tribunal hearing, could you also please let me have copies of the relevant extracts to which reference will be made.”

To that Mrs Fitzpatrick responded on 9 April in these terms:

“It is not my intention to refer to the Office Diary during the hearing at this point in time therefore copies have not been provided.  Should this situation change, I will advise you.”

12.	One week before the Employment Tribunal hearing on 28 April Mr Martin received the witness statement of Mr Wright referring to the Schedule and the Schedule itself which form part of the bundle.  He did not then ask to see the diary in order to compare it with the Respondent’s Schedule.

13.	At the hearing the Respondent did not bring the Diary to the Employment Tribunal as they had promised.  However, Mr Martin did not call for its production nor apply for an adjournment for that purpose.  He soldiered on, challenging the Respondent’s version of the hours actually worked by the Applicant on the basis of the Applicant’s own account.  

14.	In the event the Employment Tribunal accepted the Respondent’s account which, Mr Martin accepts, wholly undermines both the Working Time Regulations and National Minimum Wage claims.

15.	In this application Mr Martin submits that the Employment Tribunal ought not to have accepted the Respondent’s Schedule without examining the Diary itself.  The Chairman ought to have called for it.  He, Mr Martin, could not, with reasonable diligence, have put the Diary before the Employment Tribunal in these circumstances.

16.	We cannot accept that submission.  Even where a representative is not legally qualified or experienced it is for the parties to make their case.  The adversarial, not inquisitorial system obtains before the Employment Tribunals.  Mr Martin was well aware of the existence of the Diary.  If he wished to challenged the accuracy of the Respondent’s Schedule by reference to the Diary itself it was for him to call for its production at the hearing (the Respondent having indicated that it would be brought to the hearing) and if necessary to seek an adjournment so that it could be inspected.  He did not do so.  In these circumstances we are not persuaded that the first limb of the Ladd v Marshall test is satisfied.  We shall not admit the fresh evidence.

17.	That effectively disposes of this appeal.  Mr Martin raised further points; that on the Respondent’s own admission the schedule was not wholly accurate; thus the evidence put forward by the Respondent below was false; that was an act of contempt; the case ought to be remitted for rehearing.

18.	Again we cannot accept that submission.  Such minor inaccuracies in the evidence will not of themselves found an appeal on a point of law.  Our jurisdiction is limited to correcting errors of law by the Employment Tribunal.  

19.	In these circumstances it must follow that we shall dismiss this appeal.