Manning and Langstaff v Middleton Miniature Mouldings

An employment tribunal has a wide discretion to regulate its procedure and to determine the weight given to hearsay evidence. A written witness statement is not necessarily excluded merely because its author is unavailable for cross-examination. Where the statement is admitted but given no weight, the tribunal’s decision will not be perverse merely because the evidence might have been relevant. The Employment Tribunal Rules do not impose strict rules of evidence. An appellate tribunal should interfere only where the decision falls outside the proper limits of legal rationality.

The claimants appealed against remedy judgments of the Newcastle-upon-Tyne Employment Tribunal. The tribunal had previously found that each claimant breached duties of fidelity owed to their former employer. At the remedy hearing, the claimants sought to rely on a written statement from Mr Coffey, a managing director of the employer’s former customer. He was said to be unwell and living in Ireland and was unavailable for oral evidence and cross-examination.

The central issue was whether the employment tribunal had excluded the statement, or had admitted it but attached no weight to it, and whether that decision was legally perverse.

1. The appeals were dismissed. The Employment Tribunal had admitted Mr Coffey’s written statement but decided to attach no weight to it because he was unavailable to give evidence under oath or to be cross-examined.
2. The statement also contained material directed to the earlier liability findings, which were not open for reconsideration at the remedy hearing. Its only potentially relevant material concerned whether the customer would have remained with the respondent.
3. The weight to be given to hearsay evidence is essentially a matter for the employment tribunal’s judgment. Employment tribunals are not bound by strict rules of evidence under ET Rule 14(2).
4. The decision to attach no weight to the statement was not legally perverse. Applying the approach to perversity explained in Yeboah v Crofton [2002] IRLR 634, and in the present context with reference to Noorani v Merseyside TEC Ltd [1999] IRLR 184, there was no basis for appellate intervention.
5. No procedural unfairness was established. The remedy judgments awarding the respondent £14,682 against each claimant therefore stood.

• Employment Appeal Tribunal: dismissed the appeals against the Newcastle-upon-Tyne Employment Tribunal’s remedy judgments. The liability judgments were not appealed.