E Bayo v Ministry of Defence

Where an application for reconsideration contains genuinely new evidence which could not have been produced at the original hearing, and which may materially affect the decision, a tribunal must recognise and assess that evidence. A refusal based on the mistaken premise that all the evidence was available at the original hearing is an error of law.

The proper course is ordinarily to remit the matter to the original Employment Judge for the rule 72 reconsideration process to begin afresh. The Appeal Tribunal should not itself assess the weight of the new material or substitute its decision on whether there is a reasonable prospect of variation or revocation.

The claimant, an Army reservist, alleged race and religious discrimination during his deployment in Cyprus. His Employment Tribunal claim was lodged outside the six-month period under section 123(2)(a) of the Equality Act. The Employment Tribunal refused an extension of time and struck out the claims. That decision was not appealed.

The claimant then sought reconsideration. His application enclosed a service-complaint appeal-body determination dated on the day of the Tribunal hearing, which he could not have received before that hearing. The determination made findings favourable to him and was capable of containing admissions material to the discrimination claims. The Employment Tribunal refused reconsideration, treating the material as evidence which could have been produced at the original hearing.

The appeal concerned whether that refusal involved an error of law and, if so, the proper disposal.

1. Appeal allowed. The reconsideration judgment was set aside. The Employment Judge had likely failed to appreciate that the service-complaint appeal-body determination was enclosed with the reconsideration application and could not have been available at the original hearing.
2. The determination was potentially highly material. It contained findings favourable to the claimant and language capable of amounting to admissions of discrimination. The respondent could not properly maintain that none of it could amount to an admission for which it might be liable. The statutory word “wronged” in section 340A(1) of the Armed Forces Act 2006 was a term of art and did not detract from the nature of the appeal body’s findings.
3. Applying Ladd v Marshall [1954] 3 All ER 475, the evidence could not with reasonable diligence have been obtained for the original hearing, was apparently credible, and was at least capable of having an important influence on the time-extension decision. Its ultimate weight, and its interaction with the other evidence and considerations before the Tribunal, were matters for the Tribunal rather than the Appeal Tribunal.
4. The application had not drawn proper attention to the enclosed determination, its date, or its potential significance. It was therefore understandable that the Employment Judge had missed the point. Nevertheless, the resulting conclusion that there was no reason why the evidence could not have been produced at the hearing was erroneous.
5. The case was remitted to the same Employment Judge to reconsider the application afresh at the first stage under rule 72, with the true position concerning the determination made clear. The Appeal Tribunal declined to substitute its own view on the reasonable-prospect question. Rule 72(3) ordinarily required the same judge to deal with reconsideration where practicable.

• Employment Appeal Tribunal: Allowed the appeal and remitted the reconsideration application to the same Employment Judge.
• Employment Tribunal: On 21 October 2019, refused to extend time for the discrimination claims and struck them out. That decision was not appealed. It subsequently refused the claimant’s reconsideration application.