NGP Utilities Ltd v Dunnington

Where an Employment Tribunal has set aside its earlier decision and will rehear an issue, finality in litigation does not justify excluding relevant evidence at that rehearing. Similar fact evidence is admissible where it is potentially probative of an issue in the case.

Although an Employment Tribunal may exclude relevant and admissible evidence under the Employment Tribunals Rules of Procedure 2013, that power should be exercised sparingly and only for good reason. Delay, expense, distraction and confusion may be relevant considerations, but they must be assessed in context. They did not justify excluding evidence of alleged dishonest commission claims where it was relevant to alleged mis-selling and the rehearing was before an Employment Judge alone.

The claimant brought an unlawful-deductions claim for unpaid commission. The employer contended that she had mis-sold the contracts on which commission was claimed and was therefore not entitled to it.

An Employment Tribunal initially determined some commission issues without deciding that contention. On reconsideration, it revoked that decision and directed a further hearing. It nevertheless refused the employer permission to rely at that hearing on three witness statements concerning alleged dishonest commission claims in the claimant's earlier and later employment.

The employer appealed the refusal. The central issue was whether the Tribunal had lawfully excluded this relevant similar fact evidence when the commission issue was to be reheard.

1. Appeal allowed. The Employment Tribunal's refusal to permit the employer to adduce the three witness statements involved errors of law and was set aside.

2. The Tribunal had already revoked its earlier commission decision and directed a reconsideration hearing. The principle of finality in litigation was consequently irrelevant to whether the employer could call evidence at that hearing. Reliance on that principle was, by itself, an error of law.

3. The Tribunal also wrongly treated the overriding objective as favouring exclusion. It had accepted that the additional delay and expense were of relatively minor importance. Admitting potentially relevant evidence was consistent with determining the real issues and maintaining equality of arms.

4. Following O'Brien v Chief Constable of South Wales Police, [2005] 2 AC 534, similar fact evidence is admissible if it is relevant, meaning potentially probative of an issue. The new evidence met that test because it tended to support the employer's allegation that the claimant dishonestly claimed commission.

5. Rule 41 of the Employment Tribunals Rules of Procedure 2013 permitted the Tribunal to exclude evidence despite its admissibility. However, relevant and admissible evidence should be excluded sparingly and only for good reason. The fact that the evidence was not direct evidence of the particular contracts did not provide such a reason. Nor did a supposed risk of distraction or confusion, especially where the hearing was before an experienced Employment Judge alone and the evidence would not occupy disproportionate time.

6. The EAT substituted an order allowing the employer to adduce the three statements at the further hearing. There was only one correct answer, the EAT was as well placed as the Tribunal to decide the issue, and remission would cause disproportionate cost and delay.

• Employment Appeal Tribunal: Allowed the employer's appeal and set aside the Employment Tribunal's refusal to admit the three witness statements.
• Employment Tribunal, North Shields: By an order sent on 2 October 2019, refused permission to rely on the new evidence at the reconsideration hearing.
• Employment Tribunal, North Shields: By a judgment sent on 15 August 2019, revoked its earlier commission decision and directed that the claim be decided again.