Adegbuji v Meteor Parking Ltd

An Employment Appeal Tribunal appeal based on fresh evidence will usually be more appropriately pursued by applying to the original Employment Tribunal for a review. The Tribunal is ordinarily better placed to assess whether the evidence would probably have affected the outcome and whether it is credible.

Where fresh evidence is relied on in an appeal, the appeal will normally be stayed pending a review application, particularly where the fresh-evidence issue stands alone. The Ladd v Marshall principles remain firm guidance, although they are not an inflexible straitjacket. A party must show that the evidence could not, with reasonable diligence, have been obtained for the original hearing.

The appellant brought various employment claims. The Employment Tribunal held that the relevant claims were barred because no prior grievance had been lodged, and dismissed them under section 32 of the Employment Act 2002.

On appeal, the appellant sought to introduce a witness statement from a former supervisor, said to confirm that the grievance letter had been passed to the employer. The sift judge rejected the fresh-evidence ground. At a rule 3(10) hearing, the central issues were whether the EAT had jurisdiction to entertain the fresh evidence and whether the appellant satisfied the applicable test.

1. Appeal dismissed. The appellant had not shown that he could not, with reasonable diligence, have obtained the former supervisor’s evidence before the Employment Tribunal hearing.
2. The proper course for a party seeking to overturn an Employment Tribunal decision on the basis of fresh evidence will almost always be an application to the original Tribunal for review under rules 34 to 36, relying in particular on rule 34(3)(d) of the Employment Tribunal Rules of Procedure.
3. The EAT’s jurisdiction is generally confined to correcting errors of law under section 21(1) of the Employment Tribunals Act 1996. It was difficult to see how a properly made decision could constitute an error of law merely because later evidence suggested that it was factually wrong. The point was left open because it had not been argued, although jurisdiction was assumed for the purposes of deciding the application.
4. The principles in Ladd v Marshall remain firm guidance for fresh-evidence applications. They require consideration of whether the evidence could have been obtained with reasonable diligence, whether it would probably have had an important influence on the result, and whether it is apparently credible.
5. The appellant knew that the witness’s evidence was important, but did not adequately pursue available steps to locate him or seek a witness order before the hearing. The Employment Judge’s choice between contradictory witnesses was a finding of fact and disclosed no appealable error of law.
6. Fresh-evidence appeals should ordinarily be stayed pending an application for review in the Employment Tribunal, even where the EAT retains jurisdiction or the appeal also raises other grounds.

• Employment Tribunal: At a pre-hearing review on 22 September 2009, the Employment Judge dismissed the relevant claims after finding that no prior grievance had been lodged. Written reasons were sent on 20 October 2009.
• Employment Appeal Tribunal: The sift rejected the fresh-evidence ground. On the appellant’s rule 3(10) application, the EAT upheld the rule 3(7) order and dismissed the appeal.