Scranage v. Rochdale Metropolitan Borough Council

On an application to reconsider a judgment for fresh evidence, the tribunal must decide whether reconsideration is necessary in the interests of justice. Where the application relies on new evidence, the Ladd v Marshall conditions apply. The material must probably have had an important influence on the original hearing, although it need not have been determinative.

That assessment turns on the issues decided at the original hearing. In dismissal and discrimination claims, the material question is ordinarily the knowledge and beliefs of the actual decision-maker. Misconduct or dishonesty by managers who initiated an investigation will not taint an independent dismissal decision unless they effectively participated in the factual findings or assessment on which that decision rested.

The Claimant, a disabled Senior Trading Standards Officer, was dismissed for gross misconduct after findings concerning his conduct at a shop and his personal and inappropriate work emails. The Employment Tribunal dismissed his unfair dismissal and discrimination claims in 2011. It found that Mr Zuntz, the dismissing officer, had independently reached an honest and reasonable belief in the relevant misconduct.

Following later criminal proceedings, the Manchester Crown Court criticised information given about the availability of emails and raised serious concerns about the credibility of two managers. The Claimant applied for reconsideration of the Employment Tribunal judgment on the basis of that material. The Employment Tribunal refused the application on 16 November 2016. The central issue on this appeal was whether the new material could probably have had an important influence on the original result.

1. Appeal dismissed. The Employment Tribunal made no error of law in refusing reconsideration under Rule 70 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

2. The applicable fresh-evidence test was that in Ladd v Marshall. The first and third conditions were accepted: the material was unavailable at the original hearing and apparently credible. The only live question was whether it would probably have had an important influence on the result. The Employment Judge was not required to recite undisputed limbs of the test. His short reasons sufficiently showed that he addressed the decisive issue.

3. The Crown Court material could, at its highest, support an inference that Ms Monk and Mr Glover had misled the Tribunal about a supposed 90-day email deletion policy. That was serious. It did not, however, undermine the original finding as to the reason for dismissal.

4. The original Tribunal had found that Mr Zuntz alone made the dismissal decision. He had an open mind and acted on his reasonable belief in three matters: conduct bringing the Respondent into disrepute, 286 personal emails sent during work time, and 38 inappropriate emails. The emails seen by Ms Monk and her report did not form part of the disciplinary charges or Mr Zuntz’s decision.

5. The authorities required focus on the mental processes of the person deputed to dismiss. There was no basis to attribute any improper purpose of Ms Monk or Mr Glover to Mr Zuntz. A different conclusion might arise where another manager had essentially participated in the findings of fact underlying dismissal, but the Tribunal’s findings excluded that possibility here. The new material therefore could not have had an important influence on the original judgment.

• Employment Appeal Tribunal: The appeal from the refusal of reconsideration was dismissed.

• Manchester Employment Tribunal: On 16 November 2016, Employment Judge Sherratt refused the Claimant’s third application to reconsider the substantive judgment.

• Manchester Employment Tribunal: Following a full merits hearing in 2011, the Tribunal dismissed claims for unfair dismissal and sex, race and disability discrimination.

• Employment Appeal Tribunal: The Claimant’s earlier appeal from the substantive judgment was dismissed after a Rule 3(10) hearing on 15 August 2012.