Grahams Garden Machinery Ltd v Warne

On an appeal concerning refusal to review a decision rejecting a late response, the Employment Appeal Tribunal must consider more than the explanation for delay. The prospective merits of the defence and the balance of prejudice are also relevant. A failure by the Employment Tribunal to address those matters is an error of law.

Fresh evidence on appeal is rarely admissible where the evidence could, with reasonable diligence, have been placed before the Employment Tribunal. Where the appellate tribunal identifies an error in the exercise of discretion, the usual course is remittal for reconsideration rather than substitution of its own discretion. Costs under the applicable appeal rule concern conduct of proceedings in the Employment Appeal Tribunal, not misconduct occurring only before the Employment Tribunal.

The Respondent appealed against Employment Judge Hollow’s refusal, dated 29 January 2010, to review a decision not to accept its response form because it was lodged out of time. The underlying proceedings concerned claims of unfair dismissal, disability and age discrimination, and holiday pay.

The Respondent sought to rely on a witness statement from its solicitor explaining the delay. The Claimant opposed its admission as fresh evidence and resisted the appeal. The central issues were whether the new evidence was admissible, whether the Employment Judge had properly exercised the discretion to review the refusal to accept the response, and whether costs should be awarded for alleged unreasonable conduct before the Employment Tribunal.

1. Appeal allowed and matter remitted. The application to admit the solicitor’s witness statement as fresh evidence was refused. The material could, with reasonable diligence, have been placed before Employment Judge Hollow when the review application was considered. The strict approach in Ladd v Marshall [1954] 1 WLR 1489, adopted in this jurisdiction in Wileman v Minilec Engineering Ltd [1988] ICR 318, applied.
2. The refusal to admit the evidence did not determine the appeal. Although the Respondent had failed to provide a full, honest and satisfactory explanation for the delay, that was not the end of the discretionary assessment. The Tribunal also had to consider the prospective merits of the defence and the overall balance of prejudice. Those principles were stated in Kwik Save Stores Ltd v Swain [1997] ICR 49.
3. Employment Judge Hollow’s reasons considered the delay, the explanation and the size of the claim, but did not address either the merits of the proposed defence or the balance of prejudice. That failure to take account of relevant factors vitiated the exercise of discretion and amounted to an error of law.
4. The approach in Charlton v Charlton Thermosystems (Romsey) Ltd [1995] ICR 56, concerning affidavit evidence and a reasonably arguable defence in an appeal against a substantive decision, did not govern this interlocutory appeal concerning refusal of an extension of time. The case was materially distinguished.
5. The matter was remitted to a different Employment Judge for reconsideration. The costs application was dismissed. Rule 34A concerned proceedings in the Employment Appeal Tribunal and did not encompass punishment for unreasonable conduct occurring before the Employment Tribunal.

• Employment Appeal Tribunal: Allowed the appeal against Employment Judge Hollow’s decision dated 29 January 2010 and remitted the review application to a different Employment Judge for reconsideration.