EAT PRACTICE AND PROCEDURE
Review
New evidence on appeal
At a remedies hearing the Respondent argued that the Claimant would have been made redundant shortly if he had not been unfairly dismissed. Oral evidence as to their redundancy policy was given. The hearing was not completed and was adjourned so that the parties could provide written closing submissions before the Tribunal reached a decision.
The Claimant asked for a copy of the Respondent’s redundancy policy document. The Respondent had not disclosed it and did not produce it at the hearing. They declined to produce it after the hearing but before the Tribunal reached a decision. The Claimant subsequently got hold of it by another route; it differed from the oral evidence given about it by the Respondent to a material degree. The Claimant sought but was refused a review. He appealed against the substantive award of compensation and against the refusal of a review.
The EAT heard oral evidence about what had passed between the parties as to the redundancy document and as to the Respondent’s withholding of it. At the end of that evidence there was no time to proceed to argument and the appeal had to be adjourned. An indication was given that the EAT might regard the Claimant’s evidence as preferable.
Before the resumption of the appeal, the parties agreed that the first appeal should be allowed and the remedies issues remitted to a new tribunal. The EAT had, however, to resume the hearing, albeit only to give a judgment. Two points of practical importance are set out in the judgment:-
The parties to an appeal cannot of themselves agree that an appeal shall be allowed; the judgment of a court or tribunal can only be overturned by the judgment of an appellate court or tribunal.
Issues relating to new evidence, such as the redundancy document in this case, should be addressed by the ET’s review process and should not need to be dealt with by the EAT.
Jeffrey Burke QC
[2013] UKEAT 0314 – 12 – 0205
Bailii
England and Wales
Employment
Updated: 18 November 2021; Ref: scu.514288