Baiyelo v London Borough Of Southwark & Ors

On an appeal limited to questions of law, the Employment Appeal Tribunal will not reargue factual findings or interfere with an Employment Tribunal’s case-management discretion unless an error of law is shown. New evidence is admitted only exceptionally, particularly where it could have been produced at the original hearing and would not materially affect the result.

For unfair dismissal, the question under section 98(4) of the Employment Rights Act 1996 is whether dismissal fell within the band of reasonable responses, having regard to the employer’s investigation, genuine belief and the substantial merits of the case. The appeal was dismissed.

The Claimant, an experienced council employee, was summarily dismissed for gross misconduct after failing to disclose ownership of a property when applying for homelessness assistance and later exercising a right to buy.

The Employment Tribunal rejected her unfair-dismissal and discrimination claims, finding that the Respondent had conducted a reasonable investigation, held a genuine belief in misconduct and acted within the band of reasonable responses. A review application was granted technically but the original judgment was affirmed.

The Claimant appealed under rule 3(10), alleging insufficient investigation, bias and the significance of new evidence. The central issues were whether the Tribunal had erred in law or had wrongly refused to admit or act upon further evidence.

1. Disposition. The rule 3(10) application and appeal were dismissed. There was no error of law in the Employment Tribunal’s decision on review not to alter its original judgment.
2. The EAT’s jurisdiction was confined to questions of law. The Tribunal was entitled to treat the application to introduce further evidence as a matter of discretion, case management and the interests of justice. The proposed evidence could have been adduced earlier and would have had little, if any, material effect because other evidence independently supported the decision.
3. The relevant focus was the 2005 right-to-buy application, which did not disclose the property. On the Tribunal’s findings, the Claimant would not have qualified for the relevant housing benefits or right to buy had the ownership or occupation been disclosed. The Tribunal was entitled to conclude that the Respondent had a genuine belief, conducted a reasonable investigation and treated the misconduct as sufficiently serious for dismissal under section 98(4) of the Employment Rights Act 1996.
4. The allegation of actual or apparent bias failed. The remark attributed to a lay member did not establish unfairness. Apparent bias was assessed by reference to the impartial-observer test in Porter v Magill [2001] UKHL 67.
5. New evidence before the EAT was exceptional. The email evidence was indirect, the relevant witness could have been called before the Tribunal, and the material did not satisfy the applicable requirements. The EAT therefore had no basis to intervene.

• Employment Appeal Tribunal. The appeal under rule 3(10) was dismissed.
• Employment Tribunal. The Tribunal dismissed the Claimant’s claims and, on review, affirmed its judgment.