outasightEAT201411
EAT Practice and Procedure: Review – Reconsideration – Rule 70 Schedule 1 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 – fresh evidence – interests of justice
Having lost his claim for wrongful dismissal/breach of contract before the Employment Tribunal, the Claimant applied for a reconsideration of that Judgment on the basis that he wished to adduce fresh evidence. The evidence in question related to the earlier criminal conviction (for offences of dishonesty) of the Respondent’s sole witness and director (Mr Whittaker). The Employment Tribunal considered the change in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (Rule 70-73 Schedule 1) – which departed from the specified categories provided by Rule 34(3) of the Employment Tribunal Rules 2004 – meant it had a broader discretion and could admit fresh evidence even if not meeting the tests laid down in Ladd v Marshall [1954] 3 All ER 745, CA. Although there was no evidence as to why the information could not have been obtained prior to the Liability Hearing, the Employment Tribunal took the view this was something it could consider and, doing so, concluded it should revoke its original Judgment.
In reaching that view, the Employment Tribunal took account of the overriding objective and wider interests of justice but felt its original Judgment had been finely balanced and the credibility of Mr Whittaker had been a central feature in its decision making; had it been aware of his past conviction for offences of dishonesty that would have been likely to have had an important influence on the result of the case (albeit it could not say that it would necessarily have changed the result). With some hesitation, the proper course was to revoke the earlier Judgment.
On the Respondent’s appeal, allowing that appeal and revoking the Reconsideration Judgment and reinstating the Liability Judgment.
The Employment Tribunal had erred in taking the view that the position had changed under the 2013 Rules. The approach laid down in Ladd v Marshall would in most cases encapsulate what is meant by ‘the interests of justice’. It provided a consistent approach across the civil courts and laid down the test applied in the Employment Appeal Tribunal. Simply because those principles are no longer expressly set out within the Employment Tribunal Rules did not mean that they no longer had relevance when determining ‘the interests of justice’.
There might be cases where the interests of justice would permit fresh evidence to be adduced notwithstanding that the principles laid down in Ladd v Marshall were not strictly met. Employment Tribunals had, however, always had the ability to review Judgments where it was in the interests of justice to do so (see Rule 34(3)(e) ET Rules 2004). That power was recognised as allowing for a residual category of case, see Flint v Eastern Electricity Board [1975] ICR 395, and could permit fresh evidence to be adduced in circumstances where the requirements of paragraph (d) were not strictly met (Flint; General Council of British Shipping v Deria [1985] ICR 198, EAT). Such cases might include those where there was some additional factor or mitigating circumstances which meant that the evidence in question could not be obtained with reasonable diligence at an earlier stage (Deria). That might arise where there were issues as to fair hearing: where a party was genuinely ambushed by what had taken place or – as in Newcastle City Council v Marsden [2010] ICR 743, EAT – where circumstances meant that an adjournment was not allowed to a party when otherwise it might have been (there apparently because of error on the part of Counsel). That, however, was not this case. The Claimant had known sufficient of Mr Whittaker’s past to say – in written submissions at the Liability Hearing – that he had previously been in prison for fraud. If the Claimant’s case was that this was relevant to Mr Whittaker’s credibility, he could have put that or sought an adjournment (a possibility the Employment Judge had raised) in order to properly prepare to put that case. Even if he was taken by surprise by Mr Whittaker being called as the Respondent’s witness, he was given the opportunity to seek an adjournment and also had time to reflect further on the point when the case went part-heard. Although the Claimant said there were difficulties in researching Mr Whittaker’s past because he used his middle name, the Claimant had himself disclosed documents in the Liability Hearing that gave Mr Whittaker’s full name, which was also apparent from exhibits to his (Mr Whittaker’s) witness statement. There was no evidence that the Claimant could not have put the point and/or obtained the necessary further proof of conviction before Judgment was given on liability.
Applying the interests of justice test, there was no reason why the principles laid down in Ladd v Marshall should not apply to this case. The Employment Tribunal’s conclusion was vitiated by its erroneous approach; alternatively, was perverse.
Eady QC HHJ
[2014] UKEAT 0253 – 14 – 2111
Bailii
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013
England and Wales
Employment
Updated: 01 November 2021; Ref: scu.541544
