Minakova v Brownlow Properties Ltd

Documentary evidence first produced after the close of evidence may properly be refused where its admission would require an adjournment, the claim remains inadequately particularised, and the opposing party has not previously seen the material. The fact that a claimant is unrepresented or has limited English may be relevant, but it does not remove the need to present the case fairly and with sufficient clarity. In an unlawful deductions claim, the claimant bears the burden of proving the alleged underpayment. An appeal will fail where the tribunal had evidence before it, considered the competing accounts, and was entitled to conclude that the claim had not been proved.

Ms Minakova brought claims for unfair dismissal and unlawful deductions from wages against her former employer, Brownlow Properties Ltd. The Employment Tribunal at Watford dismissed both claims in reasons promulgated on 29 December 2010.

The claimant appealed. Permission was refused on the unfair dismissal issue, but the challenge concerning the exclusion of additional wage slips and timesheets was allowed to proceed to a full hearing. The central issue was whether the tribunal had erred in refusing documents first produced during closing submissions and in dismissing the wages claim for insufficient evidence.

1. Appeal dismissed. The Employment Tribunal had committed no procedural or substantive error of law.
2. The claimant sought to introduce additional documents only after the evidence had closed and during closing submissions. Although the tribunal would have been willing to adjourn to allow the respondent to consider the material and take instructions, admission was reasonably refused because the documents had not previously been seen by the respondent, the claim remained insufficiently particularised, and the claim could and should have been stated in sufficient detail before the hearing.
3. The tribunal was entitled to take account of the claimant’s position as a litigant in person and the fact that English was not her first language. Those matters did not justify late production of documents where the resulting adjournment would cause procedural difficulty and the claim still could not be understood with sufficient precision.
4. The wages claim was plainly before the tribunal. There was conflicting evidence between the claimant and the care-home manager, and the claimant bore the burden of proving that she had been underpaid. The additional documents were unlikely to advance her case beyond the documents already in the bundle and the oral evidence.
5. The tribunal was therefore entitled to conclude that there was insufficient evidence to make a finding in the claimant’s favour. The argument concerning the respondent’s legal expenses insurance did not affect the proper exercise of the tribunal’s discretion.

• Employment Tribunal, Watford: Claims for unfair dismissal and unlawful deductions from wages dismissed; reasons promulgated on 29 December 2010.
• Employment Appeal Tribunal: Permission was refused on the unfair dismissal ground, while the challenge to the exclusion of additional evidence and dismissal of the wages claim proceeded to a full hearing. The appeal was dismissed.