N Aslam v. Barclays Capital Services & Others

Fresh evidence may be admitted on an employment appeal where it could not reasonably have been obtained for the tribunal hearing, would probably have materially influenced the result, and is apparently credible. The usual course is to stay the appeal so that the Employment Tribunal can consider a review, because fresh evidence generally concerns factual issues. That course is not sufficient where the evidence raises a substantial question about the fairness of the original hearing. In particular, non-disclosure of significant documents affecting primary findings, discrimination, and witness credibility may make a review before the same tribunal inadequate. The Employment Appeal Tribunal may then set aside the judgment and remit the case for a complete rehearing before a different tribunal.

The claimant appealed against an Employment Tribunal judgment dated 29 January 2010, which dismissed complaints of direct race discrimination, harassment, victimisation and unfair constructive dismissal under the Race Relations Act 1976. The appeal proceeded on an issue concerning the temporary appointment of another employee.

After the original hearing, an email was disclosed which suggested that the appointment might have been connected with a proposed permanent position. The email had not been disclosed despite an order for disclosure. The central questions were whether the email should be admitted as fresh evidence, whether the matter should instead be dealt with by an Employment Tribunal review, and whether the original hearing had been fair.

1. Appeal allowed. The Employment Appeal Tribunal admitted the newly disclosed email. The first and third limbs of the Ladd v Marshall test were plainly satisfied: the claimant could not reasonably have obtained the document earlier, and it was genuine. The email also probably would have had an important influence on the hearing.
2. The email materially called into question the finding that the appointment was temporary and limited to four to six weeks. It was relevant to whether the employer had effectively pre-empted a permanent selection process and therefore to the issue of racial discrimination. It also potentially affected the credibility of Mr Broyden and other witnesses.
3. The normal practice, reflected in Malken v West Midlands Regional Health Authority and Adegbuji v Meteor Parking [2010] UKEAT/1570/09, is for an appeal based on fresh evidence to be stayed so that the original tribunal can consider a review. A review is generally more appropriate because an appeal is confined to questions of law and fresh evidence usually raises factual questions.
4. That practice does not apply where the fresh evidence demonstrates that the hearing below may have been unfair. The duty of the Appeal Tribunal includes ensuring a fair hearing under the common law and article 6 of the European Convention on Human Rights.
5. Here, a review would generally have been conducted by the same tribunal. Its adverse credibility findings against the claimant and its credibility findings concerning other witnesses would be difficult to revisit. Given the significant breach of disclosure and the need for anxious scrutiny of contemporaneous documents, a review would not suffice to ensure that justice was done and seen to be done. The judgment was set aside and the claims were remitted for a fresh hearing before a different tribunal, starting from scratch.

• Employment Tribunal: judgment dated 29 January 2010 dismissed complaints of direct discrimination, harassment, victimisation and unfair constructive dismissal.
• Employment Appeal Tribunal: appeal allowed. The judgment was set aside and the matter remitted for rehearing before a different tribunal.