Bari v ASPEN Window Group

Permission to appeal should be granted where there is a properly arguable case that an appellate tribunal exercised its discretion to exclude fresh evidence on an improper basis. This is especially so where the evidence appears credible, was not reasonably available earlier, and could materially affect the decision under appeal. The court need not determine the ultimate admissibility or merits of the evidence at the permission stage. Permission may be confined to the specific ground raising that issue.

The applicant had worked for the respondent for one week and claimed unfair dismissal. The Employment Tribunal held that section 108(1) of the Employment Rights Act 1996 prevented the claim because he lacked the required period of continuous employment. It rejected his statistical extrapolation concerning disparate impact.

The Employment Appeal Tribunal dismissed his appeal and refused to admit further Labour Force Survey statistics showing that the gender gap may have increased between 1996 and 1999. The applicant sought permission to appeal to the Court of Appeal, principally on the refusal to admit that fresh evidence.

1. Permission. Permission to appeal was granted on the ground challenging the refusal to admit fresh evidence. Permission was refused on all other grounds.
2. Applicable discretion. The Employment Appeal Tribunal had a discretion whether to admit the additional evidence. The relevant considerations were those suggested in Ladd v Marshall [1954] 1 WLR 1489. The court could not readily identify how that discretion had been exercised or on what basis the fresh evidence was said to fail those considerations.
3. Arguable error. The applicant had given evidence that he tried to obtain the statistics before the Employment Tribunal hearing but was unsuccessful. The material appeared to be credible, and the additional figures appeared to show an increase, rather than a decrease, in the gap between the proportions of male and female workers meeting the one-year threshold. The evidence could therefore have had a material effect on the Employment Tribunal’s reasoning.
4. Scope of order. The issue was whether the refusal to admit the fresh evidence was arguably an improper exercise of discretion. The court did not determine whether the evidence should ultimately be admitted or whether the applicant’s discrimination argument would succeed. The appeal, if pursued, was to be heard by two Lords Justices.

• Court of Appeal (Civil Division): permission to appeal granted on the refusal to admit fresh evidence; permission refused on all other grounds.
• Employment Appeal Tribunal: appeal dismissed and further Labour Force Survey statistics not admitted.
• Employment Tribunal: claim for unfair dismissal failed because the applicant had not completed the qualifying period under section 108(1) of the Employment Rights Act 1996.