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

The Court of Appeal dismissed the appellant's challenge to the Employment Tribunal's refusal to reconsider its decision. The central legal question was whether newly obtained police disclosure amounted to fresh evidence capable of undermining the Tribunal's finding that dismissal for sending an intemperate, racially offensive email was a fair response. The court applied ordinary principles for admitting fresh evidence on appeal (Ladd v Marshall principles were invoked) and concluded the new material did not establish the alleged "collusion" between employer and complainant and in any event could not have changed the outcome: the email and the appellant's refusal to accept any wrongdoing justified dismissal. The court therefore refused to admit the additional material and dismissed the appeal.

The appellant, a solicitor (previously a barrister), was summarily dismissed by her employer, Parabis Law LLP (trading as Cogent Law), after she sent an offensive and racially charged private email to a third party, Mr Willis. She brought claims for unfair and wrongful dismissal, including an allegation of automatic unfair dismissal under section 103A of the Employment Rights Act 1996. An Employment Tribunal (sitting at London South) heard the claims (4–8 February 2013) and dismissed them, finding the dismissal was a reasonable response to conduct that brought the firm into disrepute and that a fair procedure had been followed.

The appellant sought a reconsideration (described in the Rules as a review) under rule 72(1) of the Employment Tribunal Rules 2013 on the basis of material subsequently obtained from Sussex Police under the Data Protection Act. The material was initially heavily redacted and later supplemented. She relied on passages in police interview notes which she said gave rise to a reasonable inference that the respondent firm had colluded with Mr Willis to bolster his complaint, thus rendering the dismissal pretextual. Employment Judge Zuke refused the review; the Employment Appeal Tribunal (His Honour Judge Richardson) rejected the appeal, certifying it totally without merit. Permission to appeal to the Court of Appeal was eventually granted by Laws LJ.

The issues before the Court of Appeal were whether the newly disclosed police material could properly be admitted at appellate level and whether it was capable of leading the Tribunal to a different conclusion. The court examined the content of the newly disclosed passages and the context (including prior correspondence from Mr Willis and the firm’s dismissal letter). It found that the passages were consistent with information readily obtainable from public sources or from Mr Willis' own enquiries, that there was no cogent evidence that the firm had supplied or fed material to Mr Willis, and that any such exchange would have been unlikely to affect the Tribunal’s core conclusions. The court therefore held the fresh evidence would not have undermined the Tribunal's factual finding that the email and the appellant's refusal to acknowledge its impropriety justified dismissal, and dismissed the appeal.

Appeal dismissed. The Court of Appeal held that the newly obtained police disclosure did not amount to fresh evidence capable of undermining the Employment Tribunal's findings. The alleged "collusion" between employer and complainant was not supported by the material; the information was readily publicly obtainable and, in any event, would not have altered the Tribunal's conclusion that dismissal for the offensive email and the appellant's lack of remorse was reasonable.

Employment Tribunal (London South) heard the claims 4–8 February 2013 and dismissed both unfair and wrongful dismissal claims (written reasons provided after the hearing). The appellant applied for a reconsideration under rule 72(1) of the Employment Tribunal Rules 2013 which was refused by Employment Judge Zuke (letter dated 21 March 2014). The Employment Appeal Tribunal (His Honour Judge Richardson) rejected the appeal on 28 August 2014 and certified it totally without merit. Permission to appeal to the Court of Appeal was initially refused by Lewison LJ but granted by Laws LJ on 15 October 2015. The Court of Appeal delivered judgment on 6 October 2016 ([2016] EWCA Civ 35).