Contract Security Services v Adebayo

An Employment Tribunal may control cross-examination to secure fairness and justice. It may prevent a party from putting a positive factual case which was neither pleaded nor supported by its witness evidence, particularly where the party had not sought an adjournment to remedy that deficiency.

An appeal based on perversity faces a high threshold. Limited and justified interventions in cross-examination will not establish an error of law or perversity. A compensation award must, however, give adequate reasons showing how the tribunal derived the figures used in its calculation. An unexplained daily rate may constitute a failure to provide a Meek explanation and require remission.

These were conjoined appeals from the Employment Tribunal at Watford. At the liability hearing, the Tribunal upheld Mr Adebayo’s claims for unfair dismissal and race discrimination. Contract Security Services appealed only the race-discrimination finding, alleging that the Employment Judge had improperly curtailed its cross-examination of the claimant.

The employer also appealed the remedies judgment. Following a sift, the Employment Appeal Tribunal considered three grounds concerning the assessment of compensation and interest. The central questions were whether the conduct of cross-examination rendered the liability decision unsafe and whether the Tribunal had adequately explained its compensation calculations.

1. The liability appeal was dismissed. The employer did not surmount the high threshold for a perversity appeal identified in [2002] IRLR 634. The material showed lengthy cross-examination and only three relevant interventions by the Employment Judge.

2. Those interventions were justified. A tribunal has a wide discretion over evidence and cross-examination, but must exercise it judicially and consistently with fairness and justice. Here, the questions sought to put a positive factual case which had not been pleaded in the ET3 and was not set out in the employer’s witness statements. The claimant had therefore had no prior opportunity to answer it.

3. The employer had neither prepared a detailed pleaded or evidential response nor sought an adjournment or permission to serve further witness statements. The Employment Tribunal was entitled to prevent cross-examination based on that unsupported new case. There was no error of law and no perversity in its race-discrimination decision.

4. The remedies appeal was allowed on grounds 3, 4 and 6. The Tribunal stated a daily rate of £58.14 and calculated loss of earnings from it, but did not explain how that rate had been derived from the available pay material. This was a failure of Meek explanation. The related calculations in paragraphs 66 and 67 could also be affected.

5. The remedies issues concerning compensation and interest were remitted to the same Employment Tribunal. The parties were permitted to adduce further evidence and make further submissions on those limited issues.

• Employment Appeal Tribunal: Liability appeal dismissed. Remedies appeal allowed on grounds 3, 4 and 6, with limited remission to the same Employment Tribunal.
• Employment Tribunal, Watford: Liability judgment dated 23 June 2011, with reasons sent on 25 July 2011, upheld unfair-dismissal and race-discrimination complaints. Remedies judgment followed hearings in September and October 2011, with reasons sent on 6 January 2012.