Hiero v Changework Now Ltd

An application for review must be considered under every potentially applicable ground. An Employment Tribunal errs in law by treating an application solely as one based on new evidence under rule 34(3)(d) without separately considering whether the interests of justice require review under rule 34(3)(e).

The new-evidence ground requires the evidence to have been unavailable, and its existence not reasonably knowable or foreseeable, at the original hearing. The interests-of-justice ground is a broad discretion. It must not be confined by rigid formulae such as exceptionality or procedural mishap. Finality, public resources and the parties’ interests remain relevant, but credible evidence suggesting manipulation of documentary evidence may require a review.

The appellant had brought disability discrimination proceedings after an employment offer was withdrawn. The Employment Tribunal found that the respondent had not known of his disability when the offer was withdrawn and rejected his claim.

The appellant later applied for a review after obtaining material from a police investigation concerning the dates and timings of an email relied on by the respondent. He argued that identical timings in documents bearing different dates suggested that the email and related management meeting notes had been manipulated.

The Employment Judge treated the application only as one based on new evidence under rule 34(3)(d), refused it, and did not separately consider rule 34(3)(e). The central issue was whether the application required consideration under the interests-of-justice ground and, if so, whether a review should be directed.

1. Appeal allowed. The Employment Judge erred in law by considering the application only under rule 34(3)(d) and failing to consider whether the interests of justice required a review under rule 34(3)(e).
2. The appellant could not satisfy the new-evidence requirement. He knew before the hearing that Alison Price possessed material concerning the date on which the email had been sent and could have obtained it by taking simple steps. The requirement in rule 34(3)(d) therefore failed, as did the corresponding reasonable-diligence test in Ladd v Marshall [1954] 1 WLR 1489.
3. The interests-of-justice ground involves a broad statutory discretion. The Employment Tribunal must assess what justice requires in the particular case and must not apply restrictive formulae such as exceptionality or procedural mishap. Relevant considerations include finality, the use of public resources and the relative impact on the parties.
4. There was an evidential basis for investigating the allegation that documentary evidence had been manipulated. The identical sending and receiving timings in documents bearing different dates could, if unexplained, materially affect the finding that a management meeting had occurred and that its notes were genuine. The EAT expressed no concluded view on the allegation.
5. The EAT had all the material necessary to determine the appropriate course. It substituted its own decision and directed a review confined to whether the timing of the apparently forwarded email could be explained other than by manipulation. Further factual matters were for the Employment Tribunal.

• Employment Appeal Tribunal: allowed the appeal, substituted a direction that the matter be reviewed in the interests of justice, and remitted the matter to the Employment Tribunal for a confined evidential investigation.
• Employment Tribunal: rejected the disability discrimination claim and later refused the review application in a letter dated 10 June 2010.