F & C Asset Management Plc & Ors v Switalski

Where a first-instance tribunal has heard fresh evidence orally in a review application and assessed its relevance and weight, the Court of Appeal should generally allow the normal review and appellate process to run before deciding whether to admit that evidence on a pending appeal. This avoids a paper-based attempt to second-guess the fact-finder, particularly where the Employment Appeal Tribunal has not yet considered whether the first-instance decision was flawed. The interests of justice may therefore require the admissibility application to be adjourned.

The claimant succeeded before the Employment Tribunal on aspects of claims for sex discrimination, harassment and victimisation. The employers’ appeal to the Employment Appeal Tribunal failed. They then sought permission to appeal to the Court of Appeal and permission to adduce fresh evidence. The same evidence was relied on in an application to the Employment Tribunal for review.

The Employment Tribunal heard the evidence orally and subject to cross-examination. It refused the review, considering the evidence relevant to remedy rather than liability, and also decided a fourth claim in the claimant’s favour. Applications to the Employment Appeal Tribunal concerning those decisions remained pending. The central issue was whether the Court of Appeal should determine admissibility immediately or await the review and appellate process.

Application adjourned.

1. The Court of Appeal had granted limited permission to appeal and directed that a single Lord Justice determine the admissibility of the fresh evidence. However, the Employment Tribunal had subsequently heard that evidence orally, with cross-examination, in the review proceedings.
2. It would be unsatisfactory for the Court of Appeal to examine the evidence on paper and attempt to second-guess the Employment Tribunal’s assessment of its weight and relevance. The Employment Appeal Tribunal had not yet considered whether the refusal of review was flawed. The proposed appeal on that issue was, in substance, an allegation of perversity.
3. In the interests of justice, the fresh evidence should be considered through the ordinary channels: first the fact-finding tribunal’s review procedure, followed, if necessary, by an appeal to the Employment Appeal Tribunal. The Court of Appeal would not hear the evidence orally and should not pre-empt that process.
4. The application to admit fresh evidence was therefore adjourned. The judge would ask the Employment Appeal Tribunal to expedite the outstanding applications. Depending on its decision and timing, the Court of Appeal appeal might be stayed or proceed on the liability issues, with the scheduled remedies hearing preserved if possible.

• Court of Appeal (Civil Division): Limited permission to appeal had been granted. The application to admit fresh evidence was adjourned pending the Employment Appeal Tribunal’s consideration of the related review appeal.
• Employment Appeal Tribunal: The employers’ original appeal against the Employment Tribunal’s judgment failed. Applications concerning the refusal of review and the claimant’s fourth claim were awaiting a decision on the sift.
• Employment Tribunal: The claimant succeeded on two aspects of her claims. The tribunal refused a review based on fresh evidence and found in her favour on the fourth claim.