Sakharkar v Northern Foods Grocery Group Limited t/a Fox's Biscuits

An appellate tribunal cannot allow an appeal solely because the parties agree that the underlying decision should be set aside. A judicial decision may be overturned only by the appellate tribunal’s own judgment, which should explain the basis for allowing the appeal and any remission.

New evidence which was unavailable at the remedies hearing, and which could materially affect the decision, may justify its admission and the setting aside of a remedies award. Ordinarily, issues concerning new evidence should be addressed through the Employment Tribunal’s review procedure. Recourse to the Employment Appeal Tribunal should be rare.

The Claimant had succeeded in an earlier appeal against the dismissal decision, and the matter had been remitted to the Employment Tribunal for remedies. At the remedies hearing, the Respondent contended that he 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 redundancy matrix. After the remedies decision, the Claimant obtained the document by another route. He contended that it materially contradicted the evidence relied upon by the Tribunal. The Employment Judge refused his review application.

The Claimant appealed both the remedies award and the refusal of review. The central issue was whether the newly obtained redundancy document justified admitting fresh evidence, allowing the remedies appeal, and remitting the issue to a newly constituted Tribunal.

1. The remedies appeal was allowed. The written redundancy document was relevant, had not been available at the remedies hearing although it should have been disclosed, and materially undermined the basis on which the Employment Tribunal concluded that the Claimant would have been selected for redundancy within 18 months.

2. The document gave a materially different account of the Respondent’s redundancy policy from that presented in the oral evidence. It could, and probably would, have had an important bearing on the remedies award. The EAT did not determine what conclusion the document ultimately required. That assessment was for the remitted Tribunal.

3. The EAT admitted the new evidence and remitted all remedies issues, including pension loss, to a newly constituted Employment Tribunal.

4. The parties’ agreement that the appeal should be allowed could not itself overturn the Employment Tribunal’s decision. An appeal may be allowed only by the appellate tribunal’s judgment. The parties could, however, agree that the Respondent would no longer resist the appeal.

5. The review appeal was dismissed as unnecessary. The EAT observed that new-evidence issues should ordinarily be dealt with under the Employment Tribunal review procedure and should reach the EAT only rarely.

• Employment Appeal Tribunal: Allowed the appeal against the remedies decision, admitted the new evidence, and remitted remedies to a newly constituted Employment Tribunal. Dismissed the appeal against refusal of review as unnecessary.
• Employment Tribunal: In a remedies judgment sent on 18 October 2011, assessed compensation on the basis that the Claimant would have been selected for redundancy within about 18 months. The Employment Judge rejected a later review application by letter dated 1 March 2012.
• Employment Appeal Tribunal: In the earlier appeal, UKEAT/0442/10, substituted a finding of unfair dismissal and remitted remedies to the Employment Tribunal.