Nkengfack v London Borough Of Southwark

Fresh evidence on appeal must satisfy the three requirements in Ladd v Marshall: it could not reasonably have been obtained earlier, it might materially affect the result, and it is apparently credible. The requirements are separate. Evidence may have potential importance if believed, yet still fail the credibility requirement. A transcript of a conversation is not direct evidence from the speaker. Where the proposed witness has provided no statement and there is no sufficient basis for concluding that the witness will give evidence, reopening the case is unjustified.

The claimant, a schoolteacher, was dismissed for gross misconduct after her employer concluded that she had worked in her hairdressing salon while absent from school. The Employment Tribunal dismissed complaints of unfair dismissal and racial and sexual discrimination. The Employment Appeal Tribunal dismissed her appeal and refused permission to appeal.

The claimant renewed her application for permission to appeal. She relied principally on tape-recorded telephone conversations said to constitute fresh evidence. She also argued that insufficient consideration had been given to alternatives to dismissal.

1. Fresh evidence. The application based on the tape recordings was refused. The Employment Appeal Tribunal was entitled to conclude that the first requirement in Ladd v Marshall was not met. The claimant could reasonably have investigated the matters earlier, particularly given her close relationship with the proposed witness and the apparent availability of that witness.
2. The second and third requirements are distinct. The question whether evidence might influence the result assumes that it is believed. The question whether the evidence is apparently credible is separate. The Employment Appeal Tribunal was therefore entitled to accept the possible importance of the evidence while rejecting its apparent credibility.
3. The transcript was not direct evidence from the proposed witness. The absence of any witness statement, despite ample opportunity to obtain one, provided no sufficient basis for concluding that the witness was willing to give evidence consistently with the telephone conversation. Possible cross-examination of another witness on the transcript was too uncertain a foundation for reopening the case.
4. Alternative sanction. The claimant’s separate ground concerned the failure to consider a sanction other than dismissal. The Employment Tribunal had identified the issue and had concluded that the dismissal remained fair, although its reasoning was terse. The Court of Appeal adjourned reconsideration of this aspect so that supporting material could be produced. The fresh-evidence decision stood independently. Costs incurred at the hearing were not to be borne by the respondent even if permission were later granted.

1. Court of Appeal (Civil Division): refused the renewed application concerning fresh evidence and adjourned the alternative-sanction issue.
2. Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal and refused permission to appeal.
3. Employment Tribunal: dismissed complaints of unfair dismissal and racial and sexual discrimination.