Sakharkar v Northern Foods Grocery Group Ltd (t/a Fox's Biscuits)

An appellate tribunal cannot allow an appeal merely because the parties agree that it should be allowed. Setting aside a judicial decision requires the appellate tribunal’s own judgment and reasons.

New evidence which was relevant, unavailable at the original hearing, and capable of materially affecting the tribunal’s reasoning may justify allowing an appeal and remitting the issue for fresh determination. Ordinarily, issues concerning new evidence should first be addressed through the Employment Tribunal’s review procedure, and should reach the Employment Appeal Tribunal only rarely.

The Claimant was found to have been unfairly dismissed following an earlier appeal and the case was remitted to the Employment Tribunal for remedies. At the remedies hearing, the Respondent contended that the Claimant would probably have been selected for redundancy within 18 months.

The Respondent gave oral evidence about its redundancy policy but did not disclose the written policy. After the remedies judgment, the Claimant obtained the document by another route. He contended that it materially differed from the oral account and sought a review. The review application was refused.

The Claimant appealed both the remedies award and the refusal of review. The central issue was whether the newly obtained redundancy document justified disturbing the remedies decision.

1. The remedies appeal was allowed. The written redundancy document should have been disclosed during the remedies process, at the latest when the Claimant requested it. It gave a materially different account of the Respondent’s redundancy policy from that presented in oral evidence.

2. The document undermined the reasoning by which the Employment Tribunal concluded that the Claimant would have been made redundant within 18 months. It was relevant and could, and probably would, have had an important bearing on the remedies order. The EAT did not decide what conclusion a tribunal should reach after considering it.

3. The remedies issues, including pension-loss calculation, were remitted to a newly constituted Employment Tribunal. The appeal from the refusal of review was dismissed as unnecessary.

4. The parties’ agreement could not itself allow the appeal. Only an appellate tribunal’s judgment could set aside the Employment Tribunal’s decision, although the parties could settle and withdraw or stay an appeal.

5. The EAT added that new-evidence issues should ordinarily be resolved through the Employment Tribunal’s review procedure. It was unfortunate that the review application had not enabled the Tribunal to consider evidence which potentially undermined its decision.

• Employment Appeal Tribunal: The appeal against the remedies decision was allowed and remedies were remitted to a newly constituted Employment Tribunal. The separate review appeal was dismissed as unnecessary.
• Employment Appeal Tribunal: In the earlier unfair-dismissal appeal, the EAT substituted a finding of unfair dismissal and remitted remedies to the Employment Tribunal: UKEAT/0442/10.
• Employment Tribunal: The Tribunal’s remedies judgment, sent on 18 October 2011, assessed compensation on the basis that the Claimant would probably have been selected for redundancy about 18 months after dismissal. A later application to review that decision on new-evidence grounds was refused by letter dated 1 March 2012.