The claimant had lodged various claims, including unfair dismissal, breach of contract and other claims including race discrimination, equal pay, unlawful deduction of wages and holiday pay. It is the other claims which are the subject of this appeal. The claimant claimed that he had handed a letter expressing his grievance to his supervisor, and asked him to forward it to the respondent’s contract manager, but the manager denied ever receiving the letter. At the original Employment Tribunal hearing the supervisor was not called to give evidence because, according to the claimant, he could not contact him. The claimant could have applied for a witness order against the supervisor at the same time as the application for disclosure: instead the claimant made an application on the day of the hearing itself which was refused.The Employment Judge subsequently accepted the evidence of the respondent and dismissed the claim since no written grievance had been lodged with the respondent. The argument was that if the claimant had indeed lodged a grievance, he had taken no steps to follow it up when it was not dealt with, even though he had brought grievances on more than one occasion and was therefore familiar with the procedure. Two Notices of Appeal, one containing a new witness statement from the supervisor saying that he had indeed received the letter, were rejected on the sift, the Judge saying that the claimant could, with reasonable diligence, have called the supervisor to give evidence before the Employment Tribunal, and that fresh evidence from the supervisor had no prospect of being admitted by the EAT. The matter then came before the EAT under rule 3(10).

The EAT first questioned whether fresh evidence issues should be heard in the EAT or whether the review procedure would be more appropriate. The EAT only had jurisdiction to correct errors of law made by the Employment Tribunal: if the ET had decided a case properly on the evidence before it, it was difficult to see how they could have made an error of law simply because evidence was subsequently produced which suggested that its decision was wrong. However, the Judge decided to consider whether the claimant had a case, even though it was normal for fresh evidence appeals to be stayed pending a review application. The Judge ruled that the EJ had made a finding of fact: he had to choose between two witnesses giving contradictory evidence. There was strong evidence that, if the letter had not been received by the manager, then it had not been given to the supervisor either. The appeal was accordingly dismissed.

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Appeal No. UKEATPA/1570/09/LA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 April 2010

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

(SITTING ALONE)

MR T ADEGBUJI (APPELLANT)

METEOR PARKING LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant MR T ADEGBUJI (The Appellant in Person)

PRACTICE AND PROCEDURE - New evidence on appeal

Tribunal holds that Appellant failed to lodge written grievance with employer and that it accordingly had no jurisdiction by reason of s32 of the Employment Act 2002 – Appellant seeks to adduce evidence of colleague not called at hearing proving receipt of grievance.

Held – Appellant had not demonstrated that with reasonable diligence he could not have called the witness first time round – Ladd v Marshall applied.

Guidance offered that in almost all circumstances parties seeking to rely on fresh evidence should seek to proceed in the Employment Tribunal by way of review rather than by way of appeal; and that appeals to the EAT based on fresh evidence would normally be stayed pending a review application (even if not dismissed for lack of jurisdiction).

1. The Appellant has brought proceedings against the Respondent, his employer, in respect of unfair dismissal, breach of contract, equal pay, alleged racial discrimination, unlawful deduction of wages, holiday pay and breach of section 4 of the Employment Rights Act 1996. The claims of unfair dismissal and breach of contract are proceeding and indeed are due to be heard in the London (South) Employment Tribunal next week as I understand it. In respect of the remainder of the claims, the Respondent took the point that no prior grievance had been lodged and that the Tribunal accordingly had no jurisdiction in respect of the claims in question by virtue of the terms of section 32 of the Employment Act 2002. At a case management discussion on 13 August 2009 it was directed that that issue would be determined at a pre-hearing review.

1. That pre-hearing review took place on 22 September 2009 before Employment Judge MacInnes. The issue before him was one of primary fact. It was the Appellant's case that the claims in question had been raised in a grievance letter dated 25 February 2009 addressed to the Respondent's Contracts Manager, Mr Bill Weir. He said that he had given that letter to his supervisor, Mr Kesraoui, on 26 February 2009, for onward transmission to Mr Weir. Mr Weir gave evidence that he had never received the letter and had indeed not seen it until it was referred to in the course of the proceedings. In his witness statement he says only that he had not received the letter himself. The Judge records at paragraph 6 of the Reasons that it was his evidence that the letter "was never received by him or the Respondent": that reference to the letter not having been received by "the Respondent" goes beyond the witness statement and presumably reflects something said in the oral evidence - probably to the effect that if Mr Kesraoui had received the letter he would have passed it on to Mr Weir, as one would have expected. There was no evidence before the Judge from Mr Kesraoui. The Appellant apparently applied at the hearing for an order that he be required to attend but the Judge declined to make such an order: that is unsurprising if the application was only made on the day of the hearing itself.

1. By a Judgment and Written Reasons sent to the parties on 20 October 2009, the Judge accepted the evidence of Mr Weir and accordingly dismissed the claims in question. His reasons for preferring Mr Weir's evidence are not challenged in the Notice of Appeal. Very briefly, however, his principal point was that it was very surprising, if the Appellant had indeed lodged the grievance that he said he had, that he took no steps to follow it up when it was not dealt with, as he accepted that he had not. The Judge noted that the Appellant had brought grievances on more than one occasion before and was therefore familiar with the procedure.

1. The Appellant has appealed against that decision. His initial Notice of Appeal was held on the sift to disclose no reasonable grounds, but he has submitted a fresh Notice. That Notice depends entirely on evidence from Mr Kesraoui, which the Appellant seeks permission to introduce, which takes the form of a short witness statement confirming that he did indeed on 26 February 2009 pass Mr Weir a letter which the Appellant had given to him.

1. That fresh Notice was again rejected on the sift. HHJ Peter Clark said this:

"The Appellant could, with reasonable diligence, have called Rachid Kesraoui to give evidence before the Employment Tribunal. I see no prospect of his witness statement dated 7 January 2010 being admitted before the EAT as fresh evidence. The question as to whether the letter of 25 February 2009 was sent to Mr Weir was one of fact for the Employment Judge."

1. The matter now comes before me under rule 3 (10) of the Employment Appeal Tribunal Rules 1993. The Appellant has appeared in person and has made his points succinctly and well.

1. I should start by making this observation, though it will not be the basis on which I decide the case. In my judgment the right course for a party who seeks to have a decision of an employment tribunal overturned on the basis of fresh evidence will almost always be to apply to the original Tribunal for a review under rules 34 to 36 of the Employment Tribunal Rules of Procedure, relying on rule 34(3)(d). This Tribunal only has jurisdiction to correct errors of law on the part of an employment tribunal: see section 21(1) of the Employment Tribunals Act 1996. As at present advised, I find it hard to see how an employment tribunal which 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 which suggests that its decision was wrong. (Any analogy with fresh evidence appeals in the Court of Appeal on appeals from the High Court seems to me flawed, because the Court of Appeal has in principle jurisdiction to entertain an appeal on an issue of fact: also, there is no review procedure available in the High Court.) This appears however to be a novel point, and I have not however heard argument on it. I am accordingly prepared to assume for present purposes that this Tribunal has jurisdiction to entertain fresh evidence appeals, while flagging it up as a point which may need to be decided on a future occasion. (In some circumstances, where a new evidence point is only part of an appeal also proceeding on other grounds, section 35 of the 1996 Act may give this Tribunal the relevant jurisdiction.) However, even on that basis, the review procedure of the employment tribunal will normally be much more appropriate for deciding a fresh evidence issue. The employment tribunal will normally be better placed to decide at least the second and third questions arising under Ladd v Marshall [1954] 1 WLR 1489 - that is, whether the evidence in question would probably have had an important influence on the outcome of the case and whether it is apparently credible. Time limits in the employment tribunal are rather tighter for an application for a review than they are for an appeal to this Tribunal, but there is power to extend time in both cases and in truth, in a genuine fresh evidence case, 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.

1. For those reasons, it is already very common for fresh evidence appeals to be stayed pending a review application made, or to be made, in the employment tribunal. That course, however, was not taken in this case, and it does not appear to be the universal practice. I hope that henceforth it will become general practice, at least in cases where the fresh evidence issue stands alone or is easily separable from any other issues that may be raised.

1. Having said all that by way of preface, the fact is that the matter is now before me, and I think that in the circumstances I ought to consider whether the Appellant has made a case for the admission of fresh evidence. The governing principles are conventionally taken to be as stated in Ladd v Marshall, to which I have referred above and to which express reference is made in the Employment Appeal Tribunal Practice Direction. Although there has recently been some wobble in the Court of Appeal authorities about the weight to be given to Ladd v Marshall, the current position is that, while not constituting a straitjacket, it does provide firm guidance on the approach which will it normally be appropriate to take in such a case.

1. On that basis the central question for me is whether the Appellant could, with reasonable diligence, have adduced the evidence of Mr Kesraoui before the Tribunal: if he could not, he would be unlikely on the facts of this particular case to have difficulty with the second and third elements under Ladd v Marshall.

1. I do not believe that the Appellant has demonstrated that he could not have obtained Mr Kesraoui's evidence sooner than he did. He knew as from the hearing in 13 August 2009 that that evidence was crucial to his case. He says that he did not know how to contact Mr Kesraoui, who had been redeployed to another contract in the meantime; and he says that it was not in fact until he met him by chance in a shopping mall on Christmas Eve 2009 that he was able to make contact with him. But if the Appellant did indeed not know how to contact Mr Kesraoui, the obvious course was to write to him care of the Respondent or to write to the Respondent itself and ask to be put in touch with him. There is nothing in the letter-cum-witness statement dated 12 January 2010 which constitutes the fresh evidence application to suggest that he did so. The Appellant says nothing there about any steps taken after the hearing of 13 August 2009 to ascertain the whereabouts of Mr Kesraoui: he simply deals with the circumstances of their eventual meeting in December 2009.

1. When I put this omission to the Appellant in the course of his submissions, he said that he had in fact written to the Respondent seeking to be put in touch with Mr Kesraoui and that that had been towards the end of August 2009. He said that he had not kept a copy of the letter in question and that he could not retrieve a copy because his computer had since crashed. I am bound to say that I am not sure in the circumstances how much weight I can put on evidence - if it can be called evidence - emerging at the last minute in this way. However, even if it is right, it does not get him home. He says that the Respondent failed to reply to his letter asking to be put in touch with Mr Kesraoui and that it was unco-operative in a number of other respects, and specifically about disclosure. He showed me a letter which he had written to the Employment Tribunal dated 14 September 2009 asking for an order that the Respondent disclose all relevant documents and alleging a failure to do so. (The fact that he can produce that letter but not the other letter should not be held against him, since the copy that I had was one which was sent to him, somewhat unnecessarily perhaps, by the Employment Tribunal itself accompanying a copy of its letter to the Respondent seeking its comments.) Given that the Respondent had not co-operated in making available to him this key witness, or enabling him to get in touch with him, it would have been very easy to couple with the disclosure application an application for a witness order against Mr Kesraoui. No such application was made. No application was made until the hearing itself - which, as I have already observed, was evidently too late. Thus, even if a letter was indeed written of the kind which the Appellant has now told me about, I do not believe that he has shown that he did all that he reasonably could to obtain Mr Kesraoui's attendance at the original hearing.

1. I should briefly refer to a further ground in the fresh Notice of Appeal, though no submissions were addressed to me about it. In the Reasons the Judge recites as part of his factual account the fact that the Claimant had raised grievances with Mr Weir in June 2008 and October 2008 and says that those grievances were dealt with. The Appellant in point B in the Notice of Appeal says that the finding that the grievances in question were dealt with was not open to the Judge on the evidence before him. That is a point of no significance given that the grievances were referred to only as part of the factual background.

1. In his oral submissions before me the Appellant has made a further point, to the effect that the Judge had put the burden on him to prove not simply that he had delivered the letter of 25 February 2009 to the Respondent but that it had reached Mr Weir. The fact that Mr Weir had not received it, as the Judge accepted, did not mean that it had not been given, as the Appellant had said in his evidence, to Mr Kesraoui; and that would have been sufficient for the purpose of section 32. In the circumstances of this case that seems to be a distinction without a difference. If the Appellant had indeed given the letter to Mr Kesraoui, it is very hard to see any reason why he would not have passed it on to Mr Weir: indeed that is what in his short witness statement he says that he did. The fact, if accepted, that the letter did not reach Mr Weir was in those circumstances strong evidence that it had not been given to Mr Kesraoui either. The Judge's reasoning shows that that was indeed what he found. The truth is that in this case the Judge had to choose between two witnesses giving flatly contradictory evidence. He made his finding: it is, as Judge Clark said one of fact, and it cannot be challenged on appeal.

1. I therefore uphold the order made by Judge Clark under rule 3 (7), and this appeal is accordingly dismissed.