EAT Practice and Procedure: Review – PRACTICE AND PROCEDURE – New evidence on appeal
Following a Remedy Hearing at which the Claimant gave evidence not foreshadowed in his witness statement or any documents, that he had been offered work with three companies but the job offers had been withdrawn without reasons, leading him to suspect that the Respondent had provided unhelpful references, and the Employment Tribunal accepted this evidence, the Respondent obtained evidence from the three companies that was in conflict with the Claimant’s evidence. The Respondent sought reconsideration, but this was refused by the Employment Judge, who accepted that the evidence was apparently credible and could not realistically have been obtained before the hearing but concluded that there was no reasonable prospect that the evidence, if given, would have an important influence on the result of the case.
In reaching that conclusion the Employment Judge failed to have regard to the wider impact of the fresh evidence on the Claimant’s credibility. If true, the evidence directly contradicted evidence given by the Claimant on oath, advanced to support his case of a genuine and diligent job search and wrongly accusing the Respondent of undermining his attempts to obtain alternative employment. If as a result of the new evidence the Employment Tribunal were to conclude that the Claimant deliberately misled the Tribunal, it is difficult to see how that would not impact on the Tribunal’s assessment of the facts relevant to mitigation and future loss which underpinned the assumptions it made when making its award.
The appeal was accordingly allowed, and the matter was remitted for reconsideration to the Employment Tribunal.
Simler DBE P J
[2016] UKEAT 0329 – 15 – 1404
Bailii
England and Wales
Employment
Updated: 17 January 2022; Ref: scu.565122