Luvualu & Ors v Federal Mogul Sintered Products Ltd & Anor

A procedural-irregularity appeal based on an omitted document fails where, on the balance of probabilities, no proper application was made to the Employment Tribunal to admit it. If a proper application to admit plainly significant evidence is made, the tribunal must admit it or give a proper explanation for refusing it.

An appellate court will not infer procedural impropriety from the omission alone. It may uphold the tribunal’s decision where the tribunal properly addressed the protected acts relied on and gave adequate reasons on the evidence before it.

The appellants were agency contract workers at the first respondent’s site and employees of the second respondent. Following their dismissal, they brought discrimination, harassment and victimisation claims. The Employment Tribunal dismissed all claims after a hearing in June 2013.

The appeal was permitted to proceed only on a ground concerning an email chain omitted from the agreed bundle. The omitted material indicated that an email recording allegations of racism had been forwarded to Mr Coleman, despite his evidence that he did not know of those allegations at the material time.

The central issue was whether the Employment Tribunal had refused a proper application to admit the email chain, thereby acting unfairly and reaching inadequately reasoned conclusions.

1. Appeal dismissed. The Employment Appeal Tribunal found no procedural impropriety and no error of law in the Employment Tribunal’s decision.

2. The omission of the email chain from the bundle was inadvertent. Reading the Employment Judge’s and the respondents’ evidence as a whole, and in the light of the hearing procedure and agreed bundle, the EAT found on the balance of probabilities that the appellants’ representative had made no proper application to admit the chain.

3. The omission was potentially significant because it bore on Mr Coleman’s asserted lack of knowledge of allegations of racism. However, that significance did not establish unfairness where no proper application had been made. Had such an application been made, the Employment Tribunal would have had to admit the evidence or give a proper explanation for refusing it.

4. The Employment Tribunal had properly considered the protected acts in issue. It was also entitled, on the evidence actually before it, to find that Mr Coleman had not seen the relevant email and that the allegation of racism played no part in the decision to exclude the appellants from the site.

5. The reasons were more than adequate. The EAT therefore dismissed the sole remaining ground of appeal.

• Employment Appeal Tribunal: Appeal dismissed: [2015] UKEAT 0154_14_1903.
• Employment Tribunal: Employment Judge Perry, sitting with members, dismissed the appellants’ discrimination, harassment and victimisation claims in a judgment sent to the parties on 20 August 2013.
• Court of Appeal: Sir Stephen Sedley refused permission to appeal on the other grounds on 23 September 2014.