Edwards v Parabis Law LLP (t/a Cogent Law)

On an application to reconsider an employment tribunal decision on the ground of fresh evidence, the decisive question is whether the material is capable of leading the tribunal to a different conclusion. If it has no reasonable prospect of doing so, reconsideration may be refused without deciding whether it could have been obtained earlier. In assessing that prospect, the tribunal may consider the fresh material alongside the impressions formed from witnesses at the original hearing. Speculative inferences of collusion, based on information that could readily have been obtained publicly, will not justify reopening findings where the original decision rested on the employee’s conduct and other established matters.

The appellant, a solicitor, was summarily dismissed after sending an offensive email to a private land-dealing contact. Her claims for unfair dismissal, including automatic unfair dismissal under section 103A of the Employment Rights Act 1996, and wrongful dismissal were dismissed by an Employment Tribunal.

Her original appeal to the Employment Appeal Tribunal was out of time. She later applied under rule 72(1) of the Employment Tribunal Rules 2013 for reconsideration based on police disclosure which, she argued, suggested collusion between the respondent and the complainant. The application was refused, and the EAT rejected her appeal on the papers. The central issue in the Court of Appeal was whether the further material could realistically have led the tribunal to reach a different conclusion.

1. The appeal was dismissed. The Court of Appeal upheld the refusal to reconsider the Employment Tribunal’s decision.
2. The appellant relied on fresh police material and sought to rely on further disclosure at appellate level under ordinary Ladd v Marshall principles. The decisive issue was whether the material was capable of leading the Employment Tribunal to a different view of its original decision. Since it had no reasonable prospect of doing so, there was no need to determine whether all of it could have been obtained earlier or to address the other grounds of appeal.
3. The alleged collusion was speculative. The complainant’s knowledge of the appellant’s employment, professional title and the respondent’s identity could readily have been obtained from publicly available sources or from the circumstances of the correspondence. The reference to the appellant as a bully was an ordinary description and did not indicate that information had been supplied by the respondent.
4. Even if some information had passed between the respondent and the complainant, it would not have altered the evidential basis for dismissal. The original decision depended principally on the contents of the email, the appellant’s refusal to acknowledge that it was improper, and the finding that her private correspondence had not been kept wholly separate from her work. The absence of any reference in the dismissal letter to the police information notice or the Solicitors Regulation Authority complaint further weakened the collusion theory.
5. The Employment Judge was entitled to assess the fresh material against the impressions formed from the witnesses at the original hearing. A mistaken paragraph reference in the reconsideration reasons did not undermine the underlying factual finding. Nothing in the new material came close to displacing the conclusion that the dismissal arose from the appellant’s conduct and its effect on the firm’s reputation.

• Court of Appeal (Civil Division): Appeal dismissed on 6 October 2016.
• Employment Appeal Tribunal: Appeal against refusal of reconsideration rejected on the papers by His Honour Judge Richardson on 28 August 2014; the appeal was certified totally without merit.
• Employment Tribunal: The appellant’s unfair and wrongful dismissal claims were dismissed after a hearing in February 2013. Her later application for reconsideration was refused by Employment Judge Zuke.