In Outasight VB Ltd v Brown, the EAT has held that the Employment Tribunal Rules of Procedure 2013 did not introduce any change to the law on when a judgment may be reviewed in the light of new evidence. The principles set down by the Court of Appeal in Ladd v Marshall still apply to the question of whether the ‘interests of justice’ require a review (now known as ‘reconsideration’) under rule 70 of the 2013 Rules.

B brought claims of wrongful dismissal and breach of contract against VB Ltd after he was dismissed for theft. He argued that the dismissal was part of a plot against him by W, the director who had dismissed him. W asserted that he had been alerted to the theft by O, another employee, and that he had conducted an investigation that confirmed B’s guilt. O did not give evidence at the hearing and only W gave evidence for VB Ltd. The tribunal preferred W’s evidence and dismissed the claims, finding that B’s guilt was established. After receiving the judgment, B did further research into W’s background and discovered evidence of a conviction for fraud. He sought reconsideration of the judgment on the basis of this fresh evidence.

At the reconsideration hearing, the tribunal did not accept B’s assertion that he had been unable to find the evidence before the liability hearing. It noted that, under the ‘strict’ rule 34 of the Tribunal Rules 2004, this would not count as ‘fresh evidence’. However, the tribunal took the view that it had wider discretion under rule 70 of the 2013 Rules, which allows for reconsideration where necessary in the interests of justice, and agreed to revoke its judgment. The tribunal took into account that its original judgment had been finely balanced, that W’s credibility was central, and that B, who represented himself, had been ‘out of his depth’ at the original hearing. VB Ltd appealed to the EAT.

Her Honour Judge Eady QC, sitting alone in the EAT, reviewed the change of language between the 2004 and 2013 Rules. Rule 34(3) of the 2004 Rules set out specific circumstances in which a judgment may be reviewed. These included, at paragraph (d), where new evidence became available that was not available at the time of the hearing. Rule 34(3)(e) also provided for review where the interests of justice required it. Thus, rule 34(3)(d) reflected the principles governing the admission of new evidence on appeal set out by the Court of Appeal in Ladd v Marshall 1954 3 All ER 745, CA, and rule 34(3)(e) recognised that, even where these principles were not strictly met, the interests of justice may still require new evidence to be considered. In HHJ Eady’s view, the fact that rule 70 of the 2013 Rules dispenses with the specific categories did not indicate any change of position, nor did it suggest that the Ladd v Marshall principles no longer applied. The interests of justice may allow fresh evidence to be adduced where some additional factor or mitigating circumstance has the effect that the evidence in question could not be obtained with reasonable diligence at an earlier stage. This might be so where, for example, a party was ‘ambushed’ by the introduction of evidence at the hearing or was incorrectly refused an adjournment.

The tribunal had therefore erred in law in its approach. HHJ Eady went on to consider whether the result it reached was correct in any event and concluded that it was not. It could not be said that B was denied a fair hearing and the tribunal had failed to take into account the broader interests of justice, in particular the interest in finality of litigation. The appeal would therefore be allowed, the reconsideration judgment would be overturned and the original liability decision would be reinstated.

Link to transcript: