SQR Security Solutions Ltd v Badu

Fresh evidence on reconsideration must satisfy the three conditions in Ladd v Marshall, including that it would probably have an important influence on the result. In assessing that condition, a tribunal must consider the evidence cumulatively and its potential effect on the credibility of evidence central to the original remedy findings.

It is an error to isolate each new item and ask only whether it changes a discrete factual finding. Evidence which, if accepted, may show that a claimant gave misleading evidence on oath about mitigation may materially affect the factual assumptions supporting awards for mitigation and future financial loss. The reconsideration remains confined to the issues raised in the application.

The Employment Tribunal had upheld claims for race discrimination, harassment, victimisation and unfair dismissal. At the remedy hearing, the Claimant said that three prospective employers had offered him work and then withdrawn the offers, and suggested that unhelpful references from the Respondent might explain this.

After the hearing, the Respondent obtained emails from the prospective employers which substantially conflicted with that account. Employment Judge George refused reconsideration under Rule 72(1), holding that the material had no reasonable prospect of materially influencing findings on mitigation or future loss. The Respondent appealed. The central issue was whether the Judge had failed to consider the wider effect of the fresh evidence on the Claimant’s credibility and the remedy award.

1. Appeal allowed. The Employment Judge erred in concluding that there was no reasonable prospect that the fresh evidence would probably have an important influence on the result.
2. The first and third Ladd v Marshall conditions had been accepted below. In the absence of a respondent’s notice or cross-appeal, the Claimant could not reopen those findings. The material issue was the second condition: whether the evidence, if accepted, would probably have an important influence on the result.
3. The Judge wrongly considered the new emails in isolation. The Claimant’s evidence was central to the remedy issues. The Remedy Tribunal had accepted his evidence about the offers, whilst also expressing doubts about aspects of his evidence concerning expenses and job-search efforts.
4. The new material, if accepted, could directly contradict sworn evidence advanced to establish a genuine and diligent job search and to suggest that the Respondent had obstructed alternative employment. If the Tribunal concluded that the Claimant had deliberately misled it, that could affect its assessment of the facts relevant to mitigation and future loss, and therefore the assumptions underlying the financial award.
5. The reconsideration is remitted to the Employment Tribunal, but is limited to mitigation, future loss and financial loss. It does not reopen the injury-to-feelings award. The EAT expressed no view on the ultimate effect or reliability of the new evidence.
6. No costs were awarded under Rule 34A(1). Under Rule 34A(2)(a), the Claimant was ordered to pay £800, being half the Respondent’s issue and hearing fees.

• Employment Appeal Tribunal: Appeal allowed; the refusal of reconsideration was set aside and the financial-loss issues were remitted.
• Employment Tribunal: Employment Judge George refused reconsideration of the remedy judgment under Rule 72(1), following a remedy judgment promulgated on 2 March 2015.
• Employment Tribunal: Liability judgment promulgated on 28 November 2014 upheld claims of race discrimination, harassment, victimisation and unfair dismissal. There was no appeal against liability.