World of Home Improvements Ltd v J Cooper-Frewer (Debarred)

Fresh evidence may be admitted on appeal where it is credible, could reasonably not have been adduced at the original hearing, and could significantly affect the result. This may occur where the issue to which the evidence relates was not in dispute below, even though the evidence existed and was available. Payment in lieu of notice satisfies the employee’s notice entitlement but does not extinguish a compensatory award reflecting additional loss caused by an unfair dismissal procedure. A statement of employment particulars satisfying Employment Rights Act 1996, section 1, prevents an award under section 38 of the Employment Act 2002.

The employer appealed against the substantive decision of the Ashford Employment Tribunal and its refusal to review that decision. The Tribunal had found the dismissal unfair and awarded a basic award, compensation representing two weeks’ additional loss, a statutory uplift, and four weeks’ pay under section 38 of the Employment Act 2002 for failure to provide written particulars.

The employer sought to introduce the claimant’s letter of appointment and argued that payment made on termination extinguished the compensatory award. The central issues were whether fresh evidence should be admitted, whether the letter complied with section 1 of the Employment Rights Act 1996, and how the termination payment affected compensation.

1. Fresh evidence. The Tribunal admitted the claimant’s letter of appointment. The applicable threefold test, from Ladd v Marshall [1954] EWCA Civ 1 and adopted in this jurisdiction by Wileman v Minilec Engineering Ltd [1988] ICR 318, asks whether the evidence could have been adduced with reasonable diligence, whether it would have had a significant effect on the outcome, and whether it is apparently credible.
2. The letter was credible and could significantly affect the section 38 award. Although it existed and was in the employer’s possession, it was reasonable not to produce it at the original hearing because the issue of written particulars had not been in issue. The evidence ought to have been admitted on review.
3. Compensation. The payment made on termination satisfied the claimant’s entitlement to two weeks’ pay in lieu of notice under section 86 of the Employment Rights Act 1996. It did not satisfy the separate two-week compensatory award. That award reflected the Tribunal’s finding, applying an approach similar to Mining Supplies (Longwall) Ltd v Baker [1988] ICR 676, that proper consultation would have delayed the dismissal by two weeks. The associated statutory uplift therefore remained payable.
4. Written particulars. The letter of appointment dated 20 November 2006 complied with the mandatory requirements of section 1 of the Employment Rights Act 1996. No award under section 38 of the Employment Act 2002 should therefore have been made.
5. The appeals succeeded only to that extent. Paragraph 5 of the Tribunal’s judgment was set aside and the total award was reduced by £1,080. The remainder of the appeals was dismissed.

• Employment Appeal Tribunal: Allowed the review appeal to the extent of admitting fresh evidence, set aside the section 38 award, and dismissed the remaining challenge.
• Ashford Employment Tribunal: Found the dismissal unfair and made awards including compensation, a statutory uplift and four weeks’ pay under section 38 of the Employment Act 2002. The Tribunal later refused the employer’s review application.