Griffiths v Great Places Housing Group Ltd

Fresh evidence on appeal must probably have an important influence on the result, although it need not be decisive. Material which merely records an employee’s job title or team at a later transfer will not, without more, establish a contractual variation or displace an express flexibility term in the available contract.

A transfer spreadsheet may be admissible evidence, but it carries insufficient weight where it was prepared for an administrative purpose, does not state contractual terms, and is silent as to the alleged removal of the flexibility obligation.

The Employment Tribunal dismissed the claimant’s constructive unfair dismissal claim. It found that, following two TUPE transfers, he remained employed under the original Connaught contract. That contract described him as a ground worker and contained a flexibility clause requiring additional or alternative tasks when required.

On appeal, the claimant relied on a spreadsheet, recovered after the hearing, which Cruden had supplied for the later TUPE transfer. It identified him as “Labourer (Voids Blackpool)”. The appeal was confined to whether that fresh material satisfied the second Ladd v Marshall criterion: whether it would probably have had an important influence on the result.

1. Appeal dismissed. The spreadsheet would not probably have had an important influence, still less an important influence, on the Tribunal’s findings or the outcome. The second fresh-evidence criterion in Ladd v Marshall, [1954] 1 WLR 1489, was therefore not met.

2. The only contract available was the Connaught contract, which had transferred first to Cruden and then to the respondent. It included an express flexibility requirement. No different contract with Cruden had been recovered, despite the claimant’s belief that he might have signed one.

3. The spreadsheet was admissible as an item of evidence, but it was not a contract or a statement of contractual terms. It was prepared years after the contract was entered into and for the administrative purpose of the TUPE transfer. At most, it provided prima facie evidence of a changed job title and of membership of a voids team in Blackpool.

4. The document could not override the express contractual flexibility clause or evidence that it had been extinguished. That conclusion accorded with System Floors (UK) Ltd v Daniel, [1981] IRLR 475, and with Robertson v British Gas Corporation, [1983] IRLR 302, which established that even a statutory statement does not override the parties’ contract.

5. The references to “Voids” and “Blackpool” did not show that the claimant’s duties were contractually restricted to void properties. The evidence already before the Tribunal identified him with the voids team, while also supporting its finding that he did substantial voids work but was contractually required to undertake additional or alternative tasks. The fresh material added little or nothing to that evidence.

• Employment Appeal Tribunal: dismissed the fresh-evidence appeal in [2017] UKEAT 0097_16_3003.
• Employment Tribunal: dismissed the claimant’s constructive unfair dismissal claim. Reasons were sent to the parties on 12 October 2015.