Appeal No.	 EAT/0976/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 March 2001

Before
MR RECORDER LANGSTAFF QC
LORD GLADWIN OF CLEE CBE JP
MRS A GALLICO

MR ANDREW TURNER CROSS	APPELLANT

MRS F HANNA & MR E MYALL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION
BY OR ON BEHALF OF THE APPELLANT	

MR RECORDER LANGSTAFF QC

1	This case comes before us by way of Preliminary Hearing from an Employment Tribunal sitting at Brighton which gave its reasons on 3 March 2000.  The Appellant has indicated in writing that he does not intend to be present.  The Employment Tribunal held that the Appellant employer had made the first Respondent, Mrs Hanna, redundant and they awarded a redundancy payment, together with sums in respect of unlawful deduction from wages, payment in lieu of notice and untaken holiday pay.

2	The facts are essentially these.  Mrs Hanna was a manageress of a bakery shop run by the second Respondent.  He ran it until 3 June 1999.  It closed for a day.  The business was transferred to the Appellant.  He re-opened it as his shop but, the Tribunal found, engaged Mrs Hanna as the manageress just as she had been before.  She worked in that capacity until the business closed on 31 October 1999.  When it closed she, as an employee of his in the business, was entitled to a redundancy payment and the various sums which the Tribunal awarded.

3	The appeal is on the ground that fresh evidence has come to light.  That fresh evidence consists of a number of statements and invoices which were addressed by the business, when it was in the hands of the second Respondent, to a number of those customers of the business.  Some of the forms of invoice direct that cheques should be payable to Mrs Hanna.  The Appellant derives from this that Mrs Hanna was (a) not an employee of the business but one of the proprietors of it, or a partner in it, (b) that she was receiving money other than by wages and therefore the contract of employment, of which she also has provided a copy, was a sham and that there was here something by way of a fraud upon the revenue, the Appellant says, (c) that because the contract was thus tainted by illegality and because she was, he says, on this evidence, not an employee at all, any payment made to her on the basis that she was an employee was wrongly made.
4	There are three tests which we have to apply before we may permit fresh evidence to be given.  Those tests are well established and were set out in the civil courts generally by the Court of Appeal in Lad v Marshall.  Those tests apply in the Employment Tribunal jurisdiction as the case of Wileman v Minelec makes clear.  Those three tests are first, that the evidence could not with reasonable diligence have been uncovered before the Tribunal hearing;  secondly, that the evidence, if before the Tribunal, would have had an important influence upon the outcome and thirdly, that it would have been apparently credible.  We think that the suggested evidence fails all three tests.

5	The evidence is said to have come when the Appellant was clearing out papers.  It is plainly part of the financial record of the business.  He was the proprietor of the business since June 1999 until October 1999.  Between October 1999 and the hearing of the Employment Tribunal some five months went past.  We think that if it had been intended to make any challenge to the status of Mrs Hanna as an employee, on this or any other basis, it could and should have been done before then.

6	As to the second issue we do not think it would have had an important influence on the result.  The highest the evidence would go would be to establish that Mrs Hanna may not have been an employee.  It does not establish that she was not.  That evidence could go nowhere in face of the finding of fact by the Tribunal that the Appellant himself engaged the Applicant and paid her wages.  There can have been no suggestion that between June 1999 and October 1999 she was not an employee.  Thirdly, we have to ask whether the evidence is apparently credible.  This is in a sense of carrying the information and implication which it is said to.  We can think of any number of reasons why cheques might have been directed to be payable to Mrs Hanna, not least the fact that the provider of the business apparently had no bank account.  Therefore we think that this evidence would have taken the case nowhere.

7	There being no other basis for the appeal and, we note, the present basis being inconsistent with that put forward beforehand in opposition to the claim, this appeal must be dismissed.