The claimant (who described himself as a Muslim of South Africa /Turkish/Iranian origin) was employed by the First Respondent as an agency worker and had been assigned to the Second Respondent as a driver. He pursued ET claims of race and religion/belief discrimination and harassment, relating to comments made by other workers, alleging they had called him ‘babaji’, which he said was an inherently discriminatory term, and ‘fucking Muslim’. He also made a claim of victimisation when his placement with the Second Respondent was terminated. It was admitted that the term ‘babaji’ was used but the Respondents relied on a translation of that word, obtained by a manager of the First Respondent (Mrs Mears), which suggested it had no racial or religious connotation. Seeing that as the best direct evidence available, the ET rejected the Claimant’s case that the use of this term amounted to racial or religious harassment. The ET also rejected the Claimant’s evidence that the term ‘fucking Muslim’ was used. As for the victimisation complaint, the ET found there had been diminution in the need for drivers and the termination of the Claimant’s placement was unrelated to his complaints of harassment.
On the dismissal of the Claimant’s claim, the Respondent applied for costs. The ET considered the without prejudice correspondence relating to settlement discussions between the parties and took the view that the Claimant had acted unreasonably in the negotiations, such that it was appropriate to make an award of costs of pounds 10,000 for each the Respondents.
Subsequent to the ET hearing, the Claimant approached the translators used by Mrs Mears and was forwarded a copy of the translation provided to the First Respondent, which included a further possible translation of ‘babaji’ stating it was an offensive term related to race /religion. This new evidence suggested the document relied on before the ET had been doctored to remove this alternative translation. The Claimant applied to the ET for reconsideration of its decision, making a number of points but including clear reference to this new evidence. The ET, however, rejected the reconsideration application under 72(1) of the ET Rules 2013.
The Claimant appealed against (1) the ET’s substantive decision on his claims and the award of costs; and (2) the refusal of his reconsideration application.
Held: allowing the appeals
The new evidence relied on by the Claimant met the tests laid down in Ladd v Marshall [1954] 1 WLR 1489: specifically, it was apparently credible, it was also relevant and would probably have had an important influence on the hearing – not only as to the possible meaning of ‘babaji’
and the claim of harassment in that regard but also going to the issue of credibility more generally, and it could not have been obtained with reasonable diligence for use at the ET hearing. Although the translation of the term ‘babaji’ had been in issue, the Claimant had no reason to doubt that the document produced by Mrs Mears was genuine, he had been entitled to expect that the Respondents would comply with their disclosure obligation and produce a complete and unaltered set of documents, and the requirement to exercise due diligence in the search for evidence could not extend to requiring a party to investigate the veracity and reliability of every document produced by opposing parties.
On the Claimant’s application for reconsideration, the ET had demonstrated no engagement with the new evidence point and had failed to apply Ladd v Marshall. Had it done so, it would have been bound to find that the Claimant had met the three-stage test (see above).
The Claimant’s appeals on the basis of this ‘fresh evidence’ would thus be allowed. In the circumstances, the appropriate course was for the claims to be remitted to a differently constituted ET for re-hearing and it would be for that ET to reach a final determination on the credibility of the new evidence that the Claimant had adduced and to assess the relevance of that material in the underlying proceedings.
Given the potential importance of the new evidence to questions of credibility, it was hard to see how the ET’s earlier costs decision could stand. In any event, the ET had erred in having regard to without prejudice correspondence that had not been ‘without prejudice save as to costs’ (Reed Executive plc v Reed Business Information Ltd [2004] 1 WLR 3026 applied). Yet further, the ET’S reasoning did not demonstrate an exercise of discretion in determining whether it was appropriate to make an award of costs in this case, the ET having apparently considered this ‘therefore’ followed from its decision that its costs jurisdiction was engaged (Avoola v Christopher Fellowship UKEAT/0508/13 applied). The appeal against the costs decision would also be allowed
Citations:
[2019] UKEAT 0297 – 18 – 1605
Links:
Jurisdiction:
England and Wales
Employment, Discrimination, Costs
Updated: 10 July 2022; Ref: scu.639214