Outasight VB Ltd v Brown

Under Rules 70 to 73 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, reconsideration is permitted only where it is necessary in the interests of justice. The change from the former review rules did not create a broader or wholly new discretion.

For fresh evidence, the principles in Ladd v Marshall will usually encapsulate the interests of justice. A residual discretion may remain where additional or mitigating circumstances affect the ability to obtain the evidence earlier, particularly where there has been an unfair hearing or genuine ambush. Finality of litigation remains an important consideration. A party who had the opportunity to raise the issue or seek an adjournment cannot ordinarily obtain a second hearing merely because the case was presented inadequately.

The Claimant’s wrongful dismissal and breach of contract claim was dismissed by the Employment Tribunal. He later sought reconsideration after obtaining proof that the Respondent’s sole witness and director had an earlier conviction for dishonesty.

The Tribunal found that the Claimant could probably have obtained the evidence before judgment, but considered that the 2013 Rules gave it a wider discretion than the former rules. It revoked the original judgment and directed a rehearing. The Respondent appealed, raising the proper approach to fresh evidence and the exercise of the interests of justice discretion.

1. Appeal allowed. The Reconsideration Judgment was overturned and the original Liability Judgment was reinstated.
2. The 2013 Rules did not materially change the governing approach. The former specified grounds for review were examples of circumstances in which the interests of justice might require reconsideration. The former residual ground based on the interests of justice remained relevant.
3. For applications to introduce fresh evidence after determination of a case, the principles in Ladd v Marshall will in most cases encapsulate the interests of justice and provide a consistent approach across the civil courts and the Employment Appeal Tribunal.
4. The interests of justice may nevertheless permit fresh evidence where the strict principles are not met. Such cases are fact-specific and may involve an additional or mitigating circumstance affecting the failure to obtain the evidence earlier, including a genuine ambush, denial of an adjournment, or another circumstance resulting in an unfair hearing. The discretion must take account of both parties’ interests and the public interest in finality of litigation.
5. The Claimant knew enough about the witness’s past to raise the issue, had access to his full name, and had been offered an opportunity to seek an adjournment. He was not denied a fair hearing. Permitting the evidence at that stage gave him a second opportunity to present his case and failed to give proper weight to finality. The Tribunal’s approach was an error of law and, alternatively, perverse.

• Employment Appeal Tribunal: allowed the Respondent’s appeal, overturned the reconsideration decision and reinstated the original Liability Judgment.
• Sheffield Employment Tribunal: dismissed the wrongful dismissal and breach of contract claim, then revoked that judgment on reconsideration and directed a rehearing.