Philcox v CGDM Ltd (t/a Andrew Wilson & Co)

Fresh evidence will justify an appeal only where it could probably have had an important influence on the tribunal hearing. The appellate tribunal should ordinarily leave materiality to the tribunal which heard the case, unless its materiality is clear.

Litigation immunity covers statements prepared for use in proceedings. The exception for improper procurement of evidence applies only where the claim concerns the means by which the statement was procured, rather than its contents.

An Employment Tribunal may order a deposit where a claim has little reasonable prospect of success. Its reasons are sufficient if they enable the parties to understand why it reached that assessment.

The Claimant appealed three decisions of the East London Employment Tribunal. The first dismissed claims for sex discrimination, unfair dismissal and unauthorised deductions. She sought to adduce HMRC material concerning private use of company vehicles, contending that it undermined the Respondent’s credibility and the Tribunal’s findings.

The second and third appeals concerned post-termination victimisation claims. The Tribunal struck out the claim based on character references or witness statements on the ground of litigation immunity. It made deposit orders in respect of allegations of blacklisting and surveillance.

The central issues were whether the new material was sufficiently material to affect the merits decision, whether the witness-statement claim fell within an exception to litigation immunity, and whether adequate reasons supported the deposit orders.

1. All three appeals were dismissed. The application to review the earlier procedural decision was not granted at that stage, and the applications for a stay and adjournment were refused. The proposed further fresh-evidence grounds were out of time, concerned dismissed grounds of appeal, and should ordinarily have been raised first by an application for reconsideration before the Employment Tribunal.

2. Applying Ladd v Marshall [1954] 1 WLR 1489, the Claimant satisfied the requirements that the HMRC material could not reasonably have been obtained for the original hearing and was apparently credible. She failed, however, to establish the materiality requirement. The documents did not show that the Respondent knew other officers were continuing significant private use after the relevant instruction, had misled the Tribunal, or had treated the Claimant less favourably. They could not probably have had an important influence on allegation 11, the wider discrimination findings, or the unfair-dismissal decision.

3. The victimisation claim based on the statements was correctly struck out. The complaint concerned the content of statements prepared for use in litigation, not an alleged improper means of procuring them. It therefore did not fall within the exception explained in Singh v Governing Body of Moorlands Primary School & Anor [2013] IRLR 820. The statements remained within litigation immunity even though they were not ultimately admitted or relied on at the merits hearing.

4. The deposit orders were lawful. The Tribunal applied the correct test of little reasonable prospect of success and gave adequate reasons. There was no evidential basis for inferring that the Claimant had been blacklisted or that any such act was caused by a protected act. The Tribunal was also entitled, without determining the surveillance claim summarily, to assess it as having little reasonable prospect of success.

• Employment Appeal Tribunal: all three appeals from the East London Employment Tribunal were dismissed.
• East London Employment Tribunal (Jones ET): claims for sex discrimination, unfair dismissal and unauthorised deductions were dismissed in a judgment sent on 28 September 2015.
• East London Employment Tribunal (Prichard ET): a post-termination victimisation claim concerning witness statements was struck out, and deposit orders were made in respect of blacklisting and surveillance claims, in decisions sent on 1 October 2015.