Hossaini v EDS Recruitment Ltd (trading as J & C Recruitment)

Fresh evidence may be admitted on appeal where it meets the three requirements in Ladd v Marshall: it could not reasonably have been obtained for the original hearing, it would probably have had an important influence, and it is apparently credible. Reasonable diligence does not ordinarily require a party to investigate the genuineness of documents disclosed by an opponent.

Where such evidence indicates material non-disclosure or alteration of evidence and bears on credibility, it may reveal a procedural unfairness requiring a rehearing before a differently constituted tribunal. A tribunal considering reconsideration must engage with a properly raised fresh-evidence issue and apply that test. Costs cannot be founded on wholly without-prejudice settlement communications, and a finding that the costs jurisdiction is engaged does not itself compel an award.

The Claimant, an agency driver, brought claims of race and religion or belief harassment and victimisation against the recruitment agency and the end user. His harassment case included the admitted use of the term babaji. The Employment Tribunal dismissed the claims and ordered him to pay £10,000 costs to each Respondent.

After the hearing, the Claimant obtained an email from the translation company used by the First Respondent. It contained an additional translation suggesting that the term could be a racial or religious slur. He contended that the version disclosed to the Tribunal had been altered. The Employment Tribunal refused his reconsideration application under Rule 72(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

The Claimant appealed both the merits and costs decision and the refusal of reconsideration. The central questions were whether the material was admissible fresh evidence, whether its non-disclosure made the original hearing unfair, and whether the costs award was lawfully made.

1. Appeals allowed. The fresh material satisfied the test in Ladd v Marshall, [1954] 1 WLR 1489. It was apparently credible: the email chain was consistent with the Claimant’s explanation, while the disclosed version contained a gap capable of suggesting deletion. The EAT did not finally determine credibility.

2. The material was relevant and would probably have had an important influence on the Employment Tribunal’s decision. The translation was central to the harassment claim. If the disclosed document had been altered, that also bore materially on the credibility of the Respondents’ witnesses and on the Tribunal’s wider credibility assessment.

3. The evidence could not reasonably have been obtained before the hearing. Although the Claimant could have sought an alternative translation, he was not required, in exercising reasonable diligence, to approach a third party engaged by the opposing party in order to test the bona fides of disclosed material. A party is ordinarily entitled to expect complete and unaltered disclosure.

4. The Employment Tribunal’s refusal of reconsideration was erroneous. It gave no adequate indication that it had engaged with the serious fresh-evidence allegation or applied Ladd v Marshall. It was wrong to refuse the application summarily under Rule 72(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

5. The original proceedings had been rendered potentially fundamentally unfair. The claims were remitted for a full rehearing before a differently constituted Employment Tribunal, which must make final findings on the credibility and impact of the new material.

6. The costs appeal also succeeded. The earlier costs decision could not safely stand given the potential significance of the new evidence. Independently, the Tribunal had wrongly relied on settlement correspondence that was wholly without prejudice rather than without prejudice save as to costs, contrary to Reed Executive plc v Reed Business Information Ltd, [2004] 1 WLR 3026. It also failed to demonstrate a separate exercise of its discretion after deciding that the costs jurisdiction was engaged.

• Employment Appeal Tribunal: Allowed the appeals from the Employment Tribunal’s dismissal of the claims, costs orders, and refusal of reconsideration. Remitted the claims for rehearing before a differently constituted Employment Tribunal.
• Employment Tribunal, Norwich: Dismissed the discrimination, harassment and victimisation claims and awarded £10,000 costs to each Respondent. It later refused reconsideration under Rule 72(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013; the reconsideration judgment was sent to the parties on 23 November 2018.