J Mayanja v City of Bradford Metropolitan District Council

Where fresh evidence undermines a central premise of an Employment Tribunal’s assessment of credibility, the tribunal must consider whether its liability decision should be reconsidered. A general preference for one witness over another may render all findings unsafe where that preference rested on a material factual error.

Fresh evidence should ordinarily be raised first by reconsideration in the Employment Tribunal. In assessing reasonable diligence, the tribunal must consider the disclosure and bundle directions made. A party may reasonably rely on the opposing party to produce relevant documents where it had primary responsibility for the bundle.

The claimant alleged that the respondent Council had offered him a post and later removed him from the recruitment process because of race, protected acts and matters said to amount to indirect discrimination. He also alleged breach of contract and racial harassment. The Employment Tribunal rejected all claims, principally preferring the evidence of the recruiting manager and finding the claimant unreliable.

After the respondent obtained a costs award, the claimant found an email from the manager apparently offering him the job. In reconsideration proceedings, the Employment Tribunal accepted the email as genuine and reduced the costs award, but treated the application as confined to costs and did not reconsider liability. The claimant appealed both the liability and reconsideration judgments.

1. Appeals allowed. The liability judgment and the remaining costs judgment were set aside. The claims were remitted to a differently constituted Employment Tribunal for determination afresh.
2. The reconsideration application, read as a whole, sought reconsideration of both the liability and costs decisions. Despite the misleading covering email, the Employment Tribunal should at least have considered whether to reconsider liability. Having admitted the newly discovered email for the costs reconsideration, it was incumbent on the tribunal to consider its effect on the liability judgment.
3. Fresh evidence should usually be advanced first by reconsideration before the Employment Tribunal, as reflected in the [1954] 1 WLR 1489 principles and the Employment Appeal Tribunal Practice Direction. In the unusual circumstances here, the claimant could not reasonably have been expected to find and disclose the email before the hearing. The bundle directions placed primary responsibility for providing relevant documents on the respondent. The claimant could reasonably assume that an email offering the job would have been disclosed.
4. The email was central to the tribunal’s credibility findings. The tribunal had rejected the claimant’s assertion that an offer had been made and preferred the manager’s emphatic evidence that she had neither made, nor would have made, such an offer. That finding immediately informed its adverse assessment of the claimant and its general preference for the manager wherever evidence conflicted.
5. Although other adverse credibility findings remained, the tribunal’s generalised credibility assessment was built on an erroneous foundation. It was therefore unclear whether the other complaints would have failed absent that assessment. The liability decision was fundamentally unsafe. Remittal to a new tribunal was necessary to ensure a genuinely fresh determination without preconceptions about credibility.

• Employment Appeal Tribunal: Allowed the appeals, set aside the liability and remaining costs judgments, and remitted all complaints for a fresh hearing.
• Employment Tribunal: Dismissed the claimant’s contractual and discrimination complaints in a liability judgment sent on 15 November 2022. It later reduced a costs award from £2,000 to £200 on reconsideration, but did not reconsider liability.