Mathy Jorine Matondo v Kingsland Nursery Limited

An employment tribunal must not require a worker’s oral evidence about hours worked to be corroborated by independent or primary documentary records. There is no such evidential rule. The tribunal must assess the reliability and credibility of all the evidence, including recollection, contemporaneous communications, employment records and evidence about how those records were created.

It must then make findings from the overall evidential picture. A wages claim may succeed wholly, fail wholly, or succeed in part. The appropriate degree of factual detail depends on the issues and evidence; no inflexible item-by-item approach is required.

The claimant, a nursery practitioner, brought claims after her employment ended. Her claim for holiday pay succeeded, but the Employment Tribunal dismissed her claim for unlawful deductions from wages.

She alleged that she had worked agreed overtime and other unpaid hours. The tribunal treated her schedules as based on memory and supposition, and concluded that she had no definitive supporting evidence. It did not admit the respondent’s late signing-in sheets, although it had before it other work records and contemporaneous communications in which the claimant had raised her concerns.

The claimant appealed the dismissal of the wages claim. The central issue was whether the tribunal had wrongly required corroboration of her oral evidence instead of evaluating the evidence as a whole.

1. Appeal allowed. The tribunal’s decision on the wages claim was unsafe. Its reasoning could indicate that it regarded the claimant’s recollection-based evidence as incapable of establishing her claim without corroborative or definitive evidence. That would be an error of law.

2. There are no strict rules of evidence in an employment tribunal. Evidence based on a witness’s recollection may be accepted without independent contemporary records. Conversely, a document said to be a primary contemporaneous record does not automatically prevail. Its reliability and the reliability of the record-keeping process remain matters for the tribunal’s assessment.

3. The tribunal should have evaluated the claimant’s oral evidence, her contemporaneous grievance communications, the respondent’s spreadsheets and the respondent’s evidence concerning the creation and use of its records. It should then have made findings on the overall evidential picture. The absence of any apparent consideration of the contemporaneous communications reinforced the conclusion that the decision was unsafe.

4. The claimant’s claim was not necessarily all or nothing. It could succeed in full, fail in full, or succeed for some periods or categories of alleged underpayment. The tribunal need not invariably analyse every individual day separately. The necessary level of detail depends on the way the competing cases and evidence are presented.

5. The EAT could not substitute its own factual decision. The wages claim was remitted to the Employment Tribunal for rehearing, with no direction as to whether it should be heard by the same judge. The rehearing should permit orderly disclosure, exchanged witness statements and oral evidence on oath or affirmation.

• Employment Appeal Tribunal: Allowed the claimant’s appeal in [2024] EAT 123 and remitted the unlawful-deductions claim for rehearing.
• Employment Tribunal, Bury St Edmunds: Dismissed the unlawful-deductions-from-wages claim and upheld the holiday-pay claim. No citation was stated in the judgment.