Sweeney v Merseyside Community Rehabilitation Company Ltd

A tribunal exercising case-management powers must admit contemporaneous documentary evidence where it is sufficiently relevant to a live issue and any prejudice from its late production can fairly be managed. A document showing the number and risk category of cases allocated on a particular date could assist the assessment of workload, even though it was only a snapshot and did not establish all work required.

An erroneous refusal to admit such evidence does not require a further remission where the original tribunal has subsequently admitted it on reconsideration, conscientiously assessed it in the context of all the evidence, and properly reaffirmed its conclusions. The appropriate tribunal for a remission will ordinarily be the same panel unless there is a sound reason to doubt that it can reconsider the issue fairly.

The Claimant, a disabled former probation officer, brought claims including disability-related harassment, failure to make reasonable adjustments and constructive unfair dismissal. She alleged that she had been given an excessive caseload during an approximately 11-week period in early 2014.

At the merits hearing the Employment Tribunal refused, during the Claimant’s closing submissions, to admit a legible three-page caseload printout. It dismissed the relevant claims. Following an EAT stay, the Tribunal reconsidered its decision, admitted and assessed the document, but did not alter the dismissals.

The surviving appeal challenged the original refusal to admit the document. The central issue was whether that refusal was legally erroneous and, if so, whether any further remission was required.

1. Appeal dismissed. The Employment Tribunal erred in refusing to admit and consider the Caseload Document at the original hearing, but that error had been cured by its subsequent reconsideration.

2. The document was at least potentially relevant. It showed the number of cases for which the Claimant was responsible on a particular day and their risk categories. Although it did not show the precise work required for each case and was only a snapshot, it could assist the Tribunal’s assessment of workload during the period material to the harassment and reasonable-adjustment complaints. It crossed the threshold of sufficient relevance identified in HSBC Asia Holdings BV v Gillespie [2011] IRLR 209.

3. The Claimant sought to make submissions on the document’s face, rather than to introduce further oral evidence. The Tribunal did not identify or weigh any prejudice which could not have been managed by admitting the document and allowing short submissions from both parties. Its refusal was therefore perverse in the legal sense.

4. Applying Sinclair Roche & Temperley v Heard [2004] IRLR 763, any remission would properly have been to the same Tribunal. The error did not show bias or a closed mind. A fresh panel would have faced a substantially greater task in understanding the evidence and fitting a limited reconsideration into the original detailed decision.

5. The same Tribunal had in fact held a reconsideration hearing, considered the document with the wider evidence, and gave a detailed and reasoned explanation for maintaining its findings. No further remission was necessary. The appeal was dismissed.

• Employment Appeal Tribunal: Appeal against the Employment Tribunal’s original refusal to admit the Caseload Document. The EAT held that refusal erroneous, but dismissed the appeal because the same Tribunal had already reconsidered the matter after admitting the document.
• Employment Tribunal: The Tribunal dismissed the relevant harassment, reasonable-adjustment and constructive-dismissal complaints. On reconsideration, it admitted the Caseload Document but affirmed those outcomes.