St Andrew's Catholic Primary School v Blundell

Fresh evidence may be admitted on appeal where it could not reasonably have been obtained for the trial, could materially influence the result, and is apparently credible. The test is applied flexibly in light of the overriding objective. Late evidence may satisfy the diligence requirement where disclosure depended on withheld permission and an earlier application would have been speculative. Evidence is material if it may affect factual findings underpinning compensation, even if it is not decisive. A tribunal’s failure to answer a late disclosure application may amount to an implicit refusal within its case-management powers. Where fresh evidence warrants reconsideration, the same tribunal may conduct the reassessment, provided it approaches the evidence with an open mind.

The governing body appealed against a remedies judgment concerning compensation for unfair dismissal and victimisation discrimination. The Employment Tribunal awarded almost £300,000 for victimisation discrimination. The Employment Appeal Tribunal partly allowed the school’s appeal, including by reducing the injury-to-feelings award, but rejected two grounds concerning evidence of the claimant’s university studies and a late disclosure application: UKEAT330/09. Before the Court of Appeal, the school pursued those grounds, and sought permission to rely on fresh evidence suggesting that the claimant had continued an MA course during 2007–2008. The central issues were whether the original grounds disclosed errors of law, whether the fresh evidence satisfied the applicable admission test, and whether the compensation assessment should be reconsidered.

Disposition. Elias LJ, with Lady Justice Smith and the Master of the Rolls agreeing, rejected the two original grounds of appeal but allowed the appeal on the fresh-evidence ground only. The compensation assessment was remitted to the same Employment Tribunal.

1. Original grounds. The Employment Tribunal was entitled to describe the evidence concerning the MA course as having no real evidential value. The GP note and job-application statement originated from the claimant, who had been questioned about them. There was no independent evidence contradicting her oral account, and the Tribunal was entitled to accept that account. The EAT had correctly declined to interfere with that assessment.
2. The Employment Tribunal’s failure to answer the disclosure application could properly be treated as an implicit refusal. Given the late stage, the fact that the application could have been made earlier, the likely delay, and the uncertain value of the information, refusal was within the Tribunal’s case-management powers. The Court declined to construe the alternative provisions relied upon under the Tribunal Rules of Procedure.
3. Fresh evidence. The appellate power under the Civil Procedure Rules 1998 52(11)(2) was governed by the principles in Ladd v Marshall [1954] 1 WLR 1489. The evidence had to be apparently credible, not reasonably obtainable for the hearing, and capable of materially influencing the result. Those principles remained applicable flexibly in light of the overriding objective, as illustrated by Hamilton v Al Fayed (unreported 21 December 2000) and Sharab v Al-Saud [2009] EWCA Civ 353.
4. The criteria were satisfied. The claimant had withheld permission and the university would not provide the information without it. Before the later evidence emerged, an application for disclosure could reasonably have been viewed as speculative. If credible, the evidence could affect the factual assumptions underlying compensation and might indicate deliberate concealment. Justice therefore required reconsideration.
5. Although review by the original Tribunal is generally preferable, the Court could address the issue because it was connected with the original grounds of appeal. The same Tribunal should consider the new evidence and any consequential evidence with an open mind, using a case-management hearing to define the issues and reassessing each aspect of compensation as necessary.

• Court of Appeal (Civil Division): Allowed the appeal on the fresh-evidence ground only and remitted the compensation assessment to the same Employment Tribunal.
• Employment Appeal Tribunal: In UKEAT330/09, partly allowed the school’s appeal, including reducing the injury-to-feelings compensation, but rejected the two grounds pursued before the Court of Appeal.
• Employment Tribunal: Assessed compensation for unfair dismissal and victimisation discrimination, awarding almost £300,000 for the victimisation discrimination claim.