Walker v Barnes

Fresh evidence on review or appeal must satisfy a stringent test. It must be relevant and probative, and capable of having an important influence on the outcome. Its existence must also have been unknown, and not reasonably foreseeable, at the original hearing. An appellate tribunal may interfere only for an error of law. A conclusion that further evidence would not materially affect the result is not perverse where it adds little or nothing to evidence already considered. A rehearing should not be ordered where reopening the relevant issue would be disproportionate and is not required by the justice of the case.

Mr Barnes worked as a salesman for Walker's Windows. Although the parties believed he was self-employed, an Employment Tribunal held that he was an employee. Following his dismissal for alleged misconduct, the Tribunal found unfair dismissal, assessed his contribution at 30 per cent, and awarded compensation of £10,254.66.

Walker’s Windows sought reviews under rules 13 (1) (d) and (e) of the Employment Tribunals Rules of Procedure 2001, relying on further evidence concerning work allegedly diverted to another contractor. The chairman refused review. The Employment Appeal Tribunal held that the reasoning concerning the latest evidence was flawed and remitted the contribution issue. The central issue before the Court of Appeal was whether that refusal involved an error of law or perversity.

Lord Justice Maurice Kay gave the substantive judgment. Lord Justice Neuberger and Lord Justice Carnwath agreed.

1. Appeal allowed. The Employment Appeal Tribunal could interfere only if it identified an error of law in the Employment Tribunal chairman’s decision.
2. The chairman had applied the correct fresh-evidence approach under Ladd v Marshall [1954] 1 WLR 1489. Fresh evidence had to be relevant and probative and satisfy the more stringent requirement of having an important influence on the outcome. The evidence also had to have become available after the hearing in circumstances where its existence could not reasonably have been known or foreseen.
3. The chairman was best placed to assess the potential impact of the further evidence. He was entitled to regard it as adding no substance to the evidence concerning the Sunderland transaction. There was no evidence that Mr Barnes had profited, and the evidence remained consistent with the explanation that he was directing unsuitable work to Cavanagh Construction while seeking a mutually beneficial business relationship. It could not be said that the chairman’s conclusion was perverse.
4. By way of additional observation, the court considered that remitting the contribution issue to a differently constituted Employment Tribunal would require a substantial rehearing of the evidence. That was an unattractive course and was not required by the justice of the case.

The remittal was set aside. The appeal was allowed with costs of £280.

1. Court of Appeal (Civil Division): Allowed the appeal and set aside the remittal.
2. Employment Appeal Tribunal: Held that the Employment Tribunal chairman’s reasoning on the latest fresh evidence was legally flawed and remitted the contribution issue to a differently constituted tribunal.
3. Employment Tribunal: Held that Mr Barnes was an employee, found unfair dismissal, reduced compensation by 30 per cent for contribution, and awarded £10,254.66.