Tokyo Industries 5 Ltd v Megwa & Anor (Practice and Procedure)

Fairness requires a party to have a proper and reasonable opportunity to prepare and present its case. That opportunity is assessed objectively. A party’s subjective misunderstanding does not establish a breach of natural justice where the claim, response and listing reasonably identified the issue to be decided.

A review based on fresh evidence is unavailable where the evidence could reasonably have been known of or foreseen at the hearing. The interests-of-justice ground may exceptionally justify a review, but relevance alone is insufficient. An appellate court will not interfere with refusal of a review unless the tribunal was bound to reach a different conclusion.

The claimant brought an unfair-dismissal claim against Tokyo Industries 5 Ltd, asserting that it employed him as head doorman. Tokyo denied that relationship and maintained that he had been self-employed and later employed by GT Security Services Ltd. GT was joined as second respondent.

At a preliminary hearing, the Employment Tribunal found that the claimant’s employment had continued from an earlier employer to Tokyo and dismissed the claim against GT. Tokyo sought a review on the grounds of fresh evidence and the interests of justice. The Employment Judge refused it.

Tokyo appealed both decisions. It contended that the hearing notice had not given fair notice that its employment relationship with the claimant would be determined, that the review should have been granted, and that the Tribunal had adopted the wrong approach to identifying the employer.

1. Appeal dismissed. The Employment Tribunal committed no material procedural irregularity in deciding at the preliminary hearing whether Tokyo employed the claimant.

2. The relevant question for natural justice was objective. It was whether Tokyo had a proper and reasonable opportunity to prepare and put its case in the light of the issues, not whether its managing director in fact appreciated them. Although the hearing notice could have expressed the issues more clearly, the ET1 alleged employment and unfair dismissal, and Tokyo’s ET3 expressly denied that it employed the claimant. Employment status was therefore plainly central to the hearing. The three-hour listing and attendance of a potentially relevant witness reinforced that conclusion. No adjournment was sought.

3. The review refusal stood independently on the fresh-evidence ground. Under rule 34(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations, evidence could be relied on only if its existence could not reasonably have been known of or foreseen at the hearing. Tokyo’s evidence concerning the claimant’s earlier arrangements should have been available when it advanced its denial of employment. Even if the Employment Judge may have erred in assessing the evidence’s potential effect, that error could not affect this separate basis for refusal.

4. The interests-of-justice ground did not require a review. The residual discretion may cover a case with a special additional circumstance, but the mere relevance of fresh evidence cannot suffice. No such circumstance was identified. The Tribunal’s decision also rested on features of the relationship in 2010 and 2011, not solely on asserted continuity from the earlier employer. The refusal was not perverse.

5. The Tribunal had sufficiently considered the substance of the arrangements involving GT. The approach in Beatman was useful in an appropriate tripartite or agency case, but the facts were materially different and disclosed no identifiable error of law.

The President added, obiter, that issues for a significant preliminary hearing should be as clear as possible and that disclosure or witness-statement orders may assist, particularly where parties have lay representation.

• Employment Appeal Tribunal: appeal dismissed. The Employment Tribunal’s preliminary finding that Tokyo employed the claimant, its dismissal of the claim against GT, and its refusal of a review were upheld.
• Employment Tribunal (Newcastle-upon-Tyne): at a preliminary hearing, found that the claimant was employed by Tokyo until January 2011 and dismissed the claim against GT. The Employment Judge later refused Tokyo’s review application.