TJ Courier Chauffeur Express Ltd v Maharjan

An Employment Tribunal may proceed with a hearing in the absence of a party who has chosen not to attend, provided the tribunal fairly manages the case and considers the evidence available. A party cannot generally complain on appeal about evidence which it could have challenged by attending the hearing. A claim for an unpaid agreed sum may fall within the unlawful deductions jurisdiction where the claimant is found to be an employee. New allegations of fraud or illegality, and evidence available earlier, will not ordinarily be admitted on appeal. For the purposes of section 38 of the Employment Act 2002, a belief that the claimant was not an employee is not an exceptional circumstance once employee status has been established.

The claimant brought Employment Tribunal proceedings alleging failure to provide written particulars and unlawful deductions from wages. The Employment Tribunal found that he was an employee, awarded compensation, and ordered the minimum award under section 38 of the Employment Act 2002. The respondent company did not attend the hearing, although case-management directions required preparation of a bundle and exchange of witness statements.

The respondent appealed, alleging procedural unfairness, misclassification of the claim, and errors concerning employee status and the section 38 award. At the Rule 3(10) hearing, it also sought to rely on new allegations of fraud, illegality and immigration restrictions. The central issues were whether the Employment Tribunal had been entitled to proceed in the respondent’s absence, whether the claim fell within Part 2 of the Employment Rights Act 1996, and whether the new material could be admitted.

1. Appeal dismissed. The Employment Tribunal had been entitled to proceed. The respondent chose not to attend and had not provided the required witness statement or documents. The hearing was not a default judgment but a proper hearing at which the claimant gave evidence. The Employment Judge was entitled to case-manage the matter and listen to the claimant, particularly where the issue appeared straightforward.
2. The respondent could not complain that the claimant’s evidence was accepted when it had failed to attend and thereby lost the opportunity to challenge it. Its failure to prepare was not attributable solely to the claimant, since the case-management order applied to both parties.
3. Although the respondent had initially treated the claim as one for breach of contract under the 1994 extension of jurisdiction order, the claim form showed an allegation that an agreed sum had not been paid. Once the claimant was found to be an employee, the claim was properly justiciable under Part 2 of the Employment Rights Act 1996. A litigant in person was not required to identify the precise statutory provision where the facts sufficiently disclosed the complaint.
4. The allegations of fraud and illegality had not been expressly raised before the Employment Tribunal or in the earlier appeal materials. The passport evidence did not, on its face, prevent the claimant from working as a courier. Applying the principle in Ladd v Marshall [1954] EWCA Civ 1, there were no reasonable grounds for admitting the new evidence.
5. For section 38 of the Employment Act 2002, the employer had to identify exceptional circumstances explaining the failure to provide written particulars. Reliance on the contention that the claimant was not an employee could not constitute an exceptional circumstance once that contention had failed. Permission to appeal to the Court of Appeal was refused.

• Employment Appeal Tribunal: dismissed the respondent’s appeal from the Employment Tribunal’s judgment registered with reasons on 29 March 2010, and refused permission to appeal to the Court of Appeal.
• Employment Tribunal: found that the claimant was an employee, upheld claims concerning written particulars and unlawful deductions, and awarded £3,424.50.