Parties challenging tribunal decision with new evidence should seek review not appeal

Adegbuji v Meteor Parking Ltd EAT/1570/09

tribunal procedure | introducing new evidence | appeals

The Employment Appeal Tribunal (EAT) has held that parties seeking to introduce fresh evidence when challenging an employment tribunal decision should apply for a review by the tribunal rather than appeal its decision. 

Implications for employers

  • Any challenge to a judgment based on new evidence needs to be reviewed first by the tribunal making the decision, before the EAT will entertain an appeal. The EAT should be willing to stay any appeal lodged until the party appealing has applied for a review. 
  • It is for parties in employment tribunal proceedings to secure witness evidence from key players in the events. If a party is unable to do so, a record should be kept of the attempts that were made, in case the witness becomes available later and the party has to introduce the statement as new evidence. 

Mr Adegbuji brought claims for, among other things, unfair dismissal, breach of contract, equal pay and race discrimination against Meteor Parking Ltd. In relation to some of his claims, the employer argued that Mr Adegbuji had not met the requirement (under s.32 of the Employment Act 2002, which has now been scrapped) that he raise a grievance before the tribunal could hear them. At a pre-hearing review, Mr Adegbuji claimed that he had raised the issues in a grievance letter that he had given to his supervisor, Mr Kesraoui, to be passed on to the senior manager, Mr Weir. However, Mr Weir gave evidence that he never received the letter. There was no evidence from Mr Kesraoui. Mr Adegbuji applied at the hearing for an order requiring Mr Kesraoui to attend, but the employment judge declined to make such an order. The employment tribunal found that no grievance had been made and refused to hear the case. 

Mr Adegbuji appealed, with his notice of appeal depending entirely on evidence from Mr Kesraoui. He sought permission to introduce a short witness statement from Mr Kesraoui confirming that the latter did indeed pass Mr Adegbuji's grievance letter on to Mr Weir. 

The EAT dismissed the appeal. It applied the test set out in Ladd v Marshall [1954] 3 All ER 745 CA for deciding whether or not any fresh evidence or new document can be admitted. To be admissible, the evidence:

  • must not have been obtainable with reasonable diligence for use at the employment tribunal hearing;
  • must be relevant and would probably have had an important influence on the hearing; and
  • must be apparently credible. 

The EAT decided that Mr Adegbuji had not demonstrated that he could not have obtained Mr Kesraoui’s evidence sooner than he did. Mr Adegbuji knew from an early stage that Mr Kesraoui’s evidence was crucial to his case. Although Mr Kesraoui had been redeployed, Mr Adegbuji could have written to him care of the employer or written to the employer itself and asked to be put in touch with him. Mr Adegbuji argued that he had in fact written to the employer making such a request, but was unable to provide any documentary evidence to back this up. The EAT also pointed out that Mr Adegbuji could have applied for a witness order in advance of the tribunal hearing (he had waited until the hearing before doing this). Therefore, Mr Kesraoui's witness statement, which Mr Adegbuji had been able to attain after the hearing only because he happened to bump into him in a shopping centre, could not be adduced as new evidence. 

The EAT commented on the correct procedure for challenging an employment tribunal's decision on the basis of fresh evidence. It said that it will almost always be appropriate to apply to the original employment tribunal for a review under rules 34 to 36 of the Employment Tribunals Rules of Procedure, relying on rule 34(3)(d). The EAT's jurisdiction is limited to correcting errors of law on the part of an employment tribunal. It is hard to see how an employment tribunal that decides a case properly on the evidence before it can be said to have made an error of law simply because evidence is subsequently produced that suggests that its decision was wrong. The employment tribunal will normally be in the best position to decide whether or not the new evidence is relevant, would probably have had an important influence on the hearing, and is apparently credible, under the test set out in Ladd v Marshall. Although the time limits are tighter than when appealing to the EAT, the tribunal will generally be disposed to grant an extension because, if the evidence could genuinely not have been obtained earlier, it would not normally be just to refuse it. 

Additional resources

Case transcript of Adegbuji v Meteor Parking Ltd (Microsoft Word format, 55K) (on the EAT website)

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