Appeal No. UKEAT/0231/08/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 July 2008
Judgment handed down on 22 August 2008

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR S JONES	APPELLANT

MONEY EXPERT LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Written submissions	
For the Respondent	Written submissions	

SUMMARY
PRACTICE AND PROCEDURE:  Review

A case management order was made precluding the respondent from relying upon documents which it had not previously disclosed to the claimant. At the Hearing which the Claimant did not attend, he having emigrated, documents were relied on by the respondent which had not been disclosed to the claimant.  This was a material irregularity.  From the limited nature of the appeal which was against the refusal to review, application for review succeeded and the matter would be directed to the same employment judge for him to hear the review in the light of all new material the claimant wished to put before him.

HIS HONOUR JUDGE McMULLEN QC

1.	I will refer to the parties in this case as the Claimant and Respondent.  It is an appeal by the Claimant in those proceedings against a judgment of Employment Judge D Reed sitting alone in Liverpool on 7 March 2008, registered with reasons on 18 March 2008.  It was supplemented by reasons given on the Claimant’s application for Review, sent on 14 April 2008.

2.	The Claimant was employed by the Respondent for about 13 months, the latter part of which was subject to an agreed extension of employment which was to include provision of two months’ bonus if the Claimant stayed with the Respondent until the end of November 2007.  Payment of the bonus amounted to £5,666.66 gross and that is the nature of the claim.  Dispute arose between the parties as to the Claimant’s performance, which was a condition of the payment of the bonus and the Respondent did not pay.  The Claimant left the Respondent and took up his planned emigration to Australia.  

3.	At the hearing of the Claimant’s case the Respondent turned up with witnesses and a bundle of documents.  The Claimant had submitted his witness statement.  All of these were considered by the Employment Judge who held that the Claimant had failed to prove his case, the burden being upon him, that there had been unlawful deductions from his salary.  

4.	The Employment Judge considered the Review application and found that none of the grounds under 34(3) existed.  The Claimant appealed.  The papers were considered by Wilkie J, who made an order for a full hearing “on refusal of review only”.  By implication, the rest of the Notice of Appeal was not permitted to proceed, under Rule3(7). Liberty was given to the parties to apply to vary that order.  There was no application.  This appeal proceeds solely on the basis of the correctness of the refusal of the Employment Judge to allow a review. 

Discussion
5.	The application had been made on the basis that the interests of justice required a review.  In his reasons for refusing the review the Employment Judge accepted that documents had been used by the Respondent for the first time at the hearing and that it was not uncommon in short track hearings relating to unlawful deductions of wages for parties to attend a hearing “and produce with them any documents or evidence that they wished”.  

6.	That of course must be subject to orders already made by a Tribunal in the case.  Employment Judge Reed had substantial case management before the hearing.  The Claimant had asked for disclosure by the Respondent of supporting evidence of its case that he had failed by his performance to meet the qualifying conditions for the payment of the bonus.  The Employment Judge rejected the Claimant’s request for all email traffic to be disclosed but in that same order dated 28 February 2008 the Judge said:
“The Respondent has now had ample opportunity to disclose documents it claims are relevant and should assume that the Tribunal will not be prepared to allow it to rely on any that have not yet been disclosed (or alternatively, to postpone the hearing and costs against the Respondent).”

7.	Documents were used by the Respondent which may not have been disclosed to the Claimant.  He was therefore not in a position in his witness statement to deal with those matters which were apparently relied upon by the Respondent.  The common practice of allowing parties to turn up at a Tribunal with relevant documents would not apply in this case where there was a specific order in the terms set out above and one absent party was relying on a statement.  

8.	In my judgment there is a material irregularity in the procedure which cries out for it to be reviewed.  The purpose of the application for Review and ultimately of appeal is for the full material first to be disclosed by the Respondent to the Claimant and secondly for the Claimant to be able to put his case in writing.  The Employment Judge failed to carry through the order of 28 February 2008 and allowed the Respondent to rely on documents which had not been seen by the Claimant.  

9.	The appeal is allowed. It is therefore open to me to exercise the discretion in Employment Tribunal Rule 35 and I direct that the Claimant’s application for a review succeeds. The matter will now be returned to the judge for him to conduct that review under Rule 36 in the light of all documents now disclosed by the Respondent to the Claimant and an opportunity being given to him to make a fresh witness statement dealing with the points raised in the documents.