Ogedegbe v Stag Security Serrvice Ltd

An Employment Judge considering a review application on paper under rule 35(3) must decide whether the application discloses a ground for review and whether there is a reasonable prospect that the original decision will be varied or revoked. The Judge must not determine a serious disputed factual allegation, such as whether fresh documents were forged, without giving the affected party a proper opportunity to answer it.

Fresh evidence ordinarily requires reasonable diligence, probable material influence on the result, and apparent credibility. Failure to obtain evidence earlier is important but may not be conclusive. Where apparently important witness evidence may have been falsely presented as signed, the interests of justice may justify careful review.

The claimant’s claims of automatic unfair dismissal under section 100 of the Employment Rights Act 1996 and race discrimination had been dismissed by an Employment Tribunal. He later applied out of time to review that judgment, relying on a further medical report, a new witness statement and emails apparently showing that a former manager had not signed a witness statement used at the hearing.

The Employment Judge rejected the review application under rules 34 and 35 of the Employment Tribunal Rules of Procedure 2004. He held that the email chain was forged and also refused an extension of time. The claimant appealed against that refusal.

1. Appeal allowed in part. The Employment Judge was entitled to reject the proposed further medical evidence and the evidence of Mr Cole. Neither justified a review: the medical evidence did not undermine the point drawn from the earlier report, and Mr Cole’s evidence would not probably have affected the result and could have been obtained earlier.

2. The decision concerning the purported emails from Mr Hughes could not stand. Under rule 35(3) of the Employment Tribunal Rules of Procedure 2004, preliminary consideration is directed to whether a ground for review exists and whether there is a reasonable prospect of variation or revocation. In an appropriate case it also requires consideration of an extension of time.

3. The Judge impermissibly resolved, on the limited paper material, the serious disputed issue whether the emails were forged. His personal view of how an email chain should appear was insufficient for that conclusion. Fairness required that the allegation be specifically put to the claimant before it was upheld. That error vitiated the reasoning on this aspect of the application.

4. The claimant’s prior knowledge that Mr Hughes denied the statement, and the absence of a fresh witness statement from him, were relevant but not conclusive. The original tribunal appeared to have treated Mr Hughes’s evidence as more than merely corroborative. Further, the interests of justice under rule 34(3)(e) could arise where important evidence had been tendered as a signed witness statement but was not in fact signed.

5. The Appeal Tribunal could not substitute its own decision because the correct outcome was not plain. The refusal dated 2 November 2011 was set aside and the review application was remitted for fresh consideration by a Regional Employment Judge.

• Employment Appeal Tribunal: Allowed the appeal in part, set aside the refusal of the review application, and remitted it for fresh consideration: [2012] UKEAT 0001_12_1405.
• Employment Tribunal: Dismissed the claimant’s automatic unfair dismissal and race discrimination claims on 6 June 2011, then refused his review application on 2 November 2011.